OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS 1987 (REPEALED)
These Regulations are the Occupational Superannuation Standards Regulations 1987.
View history note
Hide history noteRegulations 3, 7, 8, 9, 11, 12, 13, 15, 16 and 21 shall be taken to have come into operation on 1 July 1986.
2(2) [Operation from 22 December 1986]Regulation 10 shall be taken to have come into operation on 22 December 1986.
2(3) [Operation from 1 July 1987]Regulations 6 and 14 shall be taken to have come into operation on 1 July 1987.
REGULATION 3 INTERPRETATION 3(1) [Definitions]In these Regulations, unless the contrary intention appears:
actuary
means a Fellow or an Accredited Member of The Institute of Actuaries of Australia;
benefit
means a superannuation pension or an annuity, or an amount payable under a superannuation pension or an annuity, and includes an ETP;
business income
means the income of a business run by a person either alone or in partnership;
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;
Commonwealth industrial authority
means any board, court, tribunal, body or person having authority under a Commonwealth Act to exercise any power of conciliation or arbitration in relation to industrial disputes;
CPI
means the consumer price index (all capital cities) published by the Australian Statistician;
defined benefit superannuation fund
means a superannuation fund whose governing rules provide that:
(a) in all cases - one or more members of the fund are entitled, on retirement, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(i) the amount of the member's annual salary:
(A) at the date of the member's retirement; or
(B) at a date before retirement; or
(C) averaged over a period of employment before retirement;
(ii) a specified amount; and
(b) if the fund is not a public sector fund - some or all of the contributions to the fund (out of which, together with earnings on those contributions, benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount;
(a) a savings bank or trading bank as defined by subsection 5(1) of the Banking Act 1959; or
(b) a public authority constituted by a law of a State or Territory, being a public authority that carries on banking business;
eligible financial corporation
means a registered corporation within the meaning of the Financial Corporations Act 1974, being a corporation that is:
(a) a corporation to which that Act applies by reason of paragraph 8(1)(a) or (b) of that Act; and
(b) a financial corporation within the meaning of paragraph 51(xx) of the Constitution;
eligible scheme
has the meaning given by section 159TE of the Tax Act;
employer
includes a person who engages another person to perform work under a subcontract;
employer representative
, in relation to a board or committee of trustees of a superannuation fund, the board of a body corporate acting as the sole trustee of a superannuation fund or a management board, management committee or other management body that exercises actual control over the policies of a superannuation fund, means a member of that board, committee or body nominated by the employer or employers of the members of the fund or by an organisation nominated by that employer or those employers as representing the interests of that employer or those employers;
ETP
means an eligible termination payment;
fully funded fund
means a defined benefit superannuation fund that is funded in advance in accordance with actuarial advice at a level that is intended to be reasonably adequate to provide for present and prospective liabilities in respect of benefits relating to the fund;
issue
, in relation to a prospectus, has the meaning given to it by section 9 of the Corporations Law;
large fund
has the meaning given by subregulation 13(2);
(a) a company registered under section 19 of the Life Insurance Act 1945; or
(b) a public authority constituted by a law of a State or Territory, being a public authority that carries on life insurance business within the meaning of subsection 4(1) of that Act;
life policy
has the same meaning as in the Life Insurance Act 1945;
member-financed benefits
means:
(a) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is calculated on the basis of contributions to the fund or such contributions and income derived from those contributions - the sum of:
(i) the contributions made by the member to the fund; and
less an amount equal to any administrative or other costs that are deducted from those contributions in accordance with the governing rules but:
(ii) the net earnings of the fund allotted to the member in accordance with the governing rules in respect of the earnings attributable to those contributions;
(iii) are not otherwise deducted from those contributions; and
(iv) are not otherwise deducted from fund income for the purpose of determining the net earnings of the fund; and
(v) are not otherwise charged to the account of the member;
(b) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is calculated on the basis of the benefits purchased under an endowment or whole of life policy - the amount of the benefits purchased by contributions made by the member to that policy, whether payment of the benefits pursuant to the policy is to be made on death, retirement, disablement or the occurrence of some other event; and
(c) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is defined in terms that include the member's salary at the date of withdrawal from the fund or at a date prior to such withdrawal or averaged over a period of employment prior to such withdrawal - benefits calculated in accordance with subregulation (5), together with the net earnings of the fund that are allotted to the member, in accordance with the terms of the governing rules, on the basis of such of those last-mentioned benefits as have been preserved in the fund;
member representative
, in relation to a board or committee of trustees of a superannuation fund, the board of a body corporate acting as the sole trustee of a superannuation fund or a management board, management committee or other management body that exercises actual control over the policies of a superannuation fund, means a member of that board, committee or body nominated by the members of the fund or by a trade union or other organisation representing the interests of those members;
minimum requisite benefit
, in relation to a member of a superannuation fund, means the minimum benefit required to be vested in the member by the superannuation fund conditions;
potential entitlement
has the meaning given by subregulation 9(1C);
prescribed agreement or award
means an agreement or award (including a consent award) that is certified or made by a Commonwealth industrial authority or a State industrial authority on or after 1 July 1986;
private sector fund
means a superannuation fund other than a public sector fund;
public sector fund
means a superannuation fund established:
(a) by a law of the Commonwealth or of a State or Territory; or
(b) under the authority of:
(i) the Commonwealth or the government of a State or Territory; or
(ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory;
recognised member
has the meaning given by section 159TE of the Tax Act;
registered auditor
means a person registered as an auditor, or deemed to be registered as an auditor, under the Companies Act 1981 or a law of a State or Territory relating to companies;
registered medical practitioner
means a person who is registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners;
registered organisation
means:
(a) an association registered under a law of a State or Territory as a trade union; and
(b) a society registered under a law of a State or Territory providing for the registration of friendly or benefit societies; and
(c) an association of employees that is registered as an organisation under the Conciliation and Arbitration Act 1904;
related entity
, in relation to a fund, means a corporation that is, under subsection 7(5) of the Companies Act 1981, deemed to be related to the trustee or to any of the trustees, as the case may be, of the fund for the purposes of that Act;
rules
, in relation to a superannuation fund, means a trust instrument, other document or legislation, or any combination of those things, governing the establishment and operation of the fund;
shortfall component
means a shortfall component within the meaning of section 64 of the Guarantee Act;
State industrial authority
means:
(a) any board or court of conciliation or arbitration, or tribunal, body or person, having authority under any State law to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or
(b) any special board constituted under any State law relating to factories;
superannuation fund conditions
, in relation to a superannuation fund, means the superannuation fund conditions within the meaning of section 5 of the Act that are applicable to the fund;
the Act
means the Occupational Superannuation Standards Act 1987;
the Guarantee Act
means the Superannuation Guarantee (Administration) Act 1992.
For the purposes of these Regulations, a reference to contributions to a superannuation fund made by a member of the fund shall be read as including a reference to:
(a) an amount transferred to that fund by another superannuation fund or by an approved deposit fund in respect of the member, being a benefit from the other fund that had, prior to that transfer, become vested in the member; and
(b) contributions made by the member to the fund that are remitted to the fund by the member's employer or some other person on behalf of that member other than contributions made by a member's employer to a superannuation fund on the employer's own behalf.
[ CCH Note: For modification of reg 3(2) in relation to preserved benefits in regulated superannuation funds, see reg 6.02(2) and Sch 2 of the Superannuation Industry (Supervision) Regulations.]
For the purposes of these Regulations, a reference to the net earnings of a superannuation fund is read as a reference to fund earnings after allowing for, at the discretion of the trustees in accordance with the governing rules:
(a) the sum of all costs deducted or charged as mentioned in subparagraphs (a)(iii), (iv) and (v) of the definition of member-financed benefits in subregulation (1); and
(b) any averaging of fund earnings (calculated after deducting the amount of any costs referred to in paragraph (a)) to reduce the effect of actual or possible periodic fluctuations in those earnings; and
(c) any losses incurred by the fund that have not otherwise been deducted.
For the purposes of these Regulations, unless the contrary intention appears, a reference to contributions to a superannuation fund made by an employer of a member of the fund is taken to include a reference to:
(a) the amount of a shortfall component in respect of the member that is contributed to that fund; and
(b) any other contributions to the fund made by or on behalf of a person, other than the member, in respect of the member.
Benefits shall be calculated as follows for the purposes of paragraph (c) of the definition of member-financed benefits in subregulation (1):
(a) where, throughout the period during which the member has contributed to the fund, contributions have been made by the member at the same rate - an amount calculated in accordance with the formula:
|
R × N × S
12 |
where:
R
is the rate, expressed as a percentage of the member's salary, at which contributions are, or have been, made to the fund by the member;
N
is the number of months that the member has contributed to the fund at that rate; and
S
is the amount of the member's salary at the date of withdrawal from the fund or at a date prior to such withdrawal or averaged over a period of employment prior to such withdrawal, as the case requires; and
(b) where, in respect of 2 or more periods within the period during which the member has contributed to the fund, the contributions have been made by the member at different rates - the sum of the amounts calculated by applying the formula specified in paragraph (a) in respect of each of such first-mentioned periods as if, for the purpose of ascertaining the relevant rate and number of months, that period were the whole of the period during which the member has contributed to the fund. 3(6) [Employment: gainful, full time, part time]
For the purposes of these Regulations:
(a) a person is gainfully employed if the person is employed for earnings including business income, bonuses, commissions, fees, gratuities, salary or wages;
(b) a person is employed part time if the person is gainfully employed for 10 hours or more weekly but less than 30 hours weekly;
(c) a person is employed full time if the person is gainfully employed for 30 hours or more weekly.
For the purposes of paragraphs (a) and (c) of the definition of member-financed benefits in subregulation (1), if a member withdraws from a superannuation fund after the end of the latest period in respect of which the net earnings of the fund have been allotted to members in accordance with the governing rules, the benefits must include a reasonable share of the estimated net earnings of the fund for the period:
(a) that begins at the end of that latest period; and
(b) that ends when the member withdraws from the fund.
Payment to the member of a superannuation fund of the share referred to in subregulation (7) discharges the obligation of the trustees of the fund under these Regulations to pay net earnings of the fund to that member in respect of the second-mentioned period in that subregulation.
If a member of a superannuation fund:
(a) joined the fund under an arrangement; or
(b) otherwise agreed;
that the whole or a part of the contributions of the member to the fund would be invested in a particular portfolio or other division of the fund, a reference in this regulation to that fund is read, in respect of those, or that part of those, contributions as a reference to that portfolio or other division of the fund.
A reference in this regulation to costs deducted from the contributions of a member of a superannuation fund to whom subregulation (9) applies is a reference to costs in respect of the particular portfolio or other division of the fund referred to in that subregulation.
The definition of pooled superannuation trust in subsection 3(1) of the Act applies to a unit trust that is:
(a) used only for investing the assets of:
(i) a superannuation fund; or
(ii) an approved deposit fund; or
(iii) a life assurance company (within the meaning of Division 8 of Part III of the Tax Act) that are assets of a tax-advantaged insurance fund (within the meaning of section 111B of the Tax Act); or
(iv) a registered organisation (within the meaning of Division 8A of Part III of the Tax Act) solely for the tax-advantaged business (within the meaning of section 116GC of the Tax Act) of the organisation; or
(v) an exempt entity within the meaning of subparagraph (a), (c) or (d) of the definition of exempt entity in section 102M of the Tax Act; and
(b) a resident unit trust within the meaning of section 102H of the Tax Act. 3A(2) [Units of another PST]
Subregulation (1) does not prevent the trustees of a pooled superannuation trust from holding the units of another pooled superannuation trust.
For the purposes of subsection 7(1) of the Act, the standards in this regulation are prescribed in relation to the vesting in, and payment to, members or former members of benefits arising directly or indirectly from amounts contributed to superannuation funds.
3B(2) [Relevant factors: estimate of reasonable share of net earnings]In estimating under subregulation 3(7) the net earnings for a period the trustees must have regard to:
(a) the factors taken into account in the latest calculation of the net earnings of the superannuation fund for the purpose of allotting those net earnings to members; and
(b) the likely returns on the investments of the fund for the period that:
(i) begins at the end of the latest period referred to in that subregulation; and
(ii) ends at the end of the next period in respect of which the net earnings of the fund are to be allotted to members; and
(c) any other factors likely to influence the net earnings of the fund during the period referred to in paragraph (b). 3B(3) [Application of estimate]
An estimate under subregulation 3(7) of the reasonable share of the net earnings for a period:
(a) applies to a member who withdraws from the fund in the period; and
(b) remains in force unless the trustees make another estimate in relation to the period, or any part of the period, in accordance with subregulation (2).
The standards prescribed by these Regulations apply in relation to a superannuation fund subject to the effect of any superannuation order within the meaning of the Crimes (Superannuation Benefits) Act 1989 that is made in respect of any member of the fund.
For the purposes of the definition of superannuation fund in subsection 3(1) of the Act, the age of 65 years is prescribed.
A benefit provided by a life assurance company or a registered organisation is taken to be an annuity for the purposes of the Act if it is a benefit that:
(a) arises under a contract that meets the standards of subregulation (2), (4), (6), (7) or (8); and
(b) in the case of a benefit purchased on or after the commencement of this paragraph - is purchased with the whole or part of a rolled-over amount within the meaning of section 27A of the Tax Act.
A contract for the provision of a benefit (in this subregulation called the annuity ) meets the standards of this subregulation if it contains provisions that ensure:
(a) that the annuity is paid at least annually throughout the life of the primary beneficiary in accordance with paragraphs (b) and (c) and, if there is a reversionary beneficiary:
(i) throughout the reversionary beneficiary's life; or
(ii) if he or she is a child of the primary beneficiary or of a former reversionary beneficiary under the annuity - at least until his or her 16th birthday; or
(iii) if the person referred to in subparagraph (ii) is a full-time student at age 16 - at least until the end of his or her full-time studies or until his or her 25th birthday (whichever occurs sooner); and
(b) that the size of the payments of benefit in a year is fixed, allowing for variation only as specified in the contract; and
(c) that, unless the Commissioner otherwise approves, the sum payable as benefit to the primary beneficiary or to the reversionary beneficiary, as the case may be, increases year by year by at least the lesser of:
(i) 5%; or
(ii) a rate equal to the rate of increase (if any) determined by comparing the quarterly CPI first published by the Australian Statistician for the second-last quarter preceding the date on which the payment is to be made with the quarterly CPI first published by the Australian Statistician for that quarter in the preceding year; and
(d) the amount paid as the purchase price is wholly converted into annuity income; and
(e) that the annuity does not have a residual capital value; and
(f) that the annuity cannot be commuted except:
(i) if the commutation is made within 6 months after the commencement day of the annuity; or
(ii) if the commutation is made within 10 years after the commencement day of the annuity to the benefit of a reversionary beneficiary on the death of the primary beneficiary; or
(iii) if section 15S of the Act applies - in accordance with the section; or
(iv) if the ETP resulting from the commutation is transferred directly to the purchase of another benefit provided under a contract that meets the standards of this subregulation or subregulation (3) or provided under rules that meet the standards of subregulation 3F(2) or (3); and
(g) that if the annuity reverts or is commuted, it does not have a reversionary component greater than 100% of the benefit that was payable before the reversion or the commutation; and
(h) that the annuity cannot be transferred to a person other than a reversionary beneficiary on the death of the primary beneficiary or of another reversionary beneficiary; and
(i) that the capital value of the annuity, and the income from it, cannot be used as security for a borrowing. 3E(3) [Effect of additional requirements]
An annuity is not taken not to meet the standards in subregulation (2) for the reason only that, although making provision meeting the standards of that subregulation, it additionally provides that:
(a) if the primary beneficiary dies within 10 years after the commencement day of the annuity, a surviving reversionary beneficiary may obtain a payment equal to the total payments that the primary beneficiary would have received, if the primary beneficiary had not died, from the day of the death until the end of the period of 10 years; and
(b) if the primary beneficiary dies within 10 years after the commencement day of the annuity and there is no surviving reversionary beneficiary, an amount, not exceeding the difference between the sum of the amounts paid to the primary beneficiary and the sum of the amounts that would have been so payable in the period of 10 years, is payable to the primary beneficiary's estate; and
(c) if the primary beneficiary dies within 10 years after the commencement day of the annuity and there is a surviving reversionary beneficiary who also dies within that period, there is payable to the reversionary beneficiary's estate an amount determined as described in paragraph (b) as if that paragraph applied to the reversionary beneficiary. 3E(4) [Annuity commencing on or after 22 December 1992]
A contract for the provision of a benefit (in this subregulation called the annuity ):
(a) that does not meet the standards in subregulation (2); and
(b) that does not fix the size of payments of benefit in a year; and
(c) under which the commencement day is on or after the commencement of section 76 of the Taxation Laws Amendment (Superannuation) Act 1992;
meets the standards of this subregulation if the contract contains provisions that at least ensure that:
(d) the standards in paragraphs (2)(h) and (i) are met; and
(e) payments are made at least annually; and
(f) the payments in a year, except a payment by way of commutation, are not larger or smaller in total than, respectively, the maximum and minimum limits calculated in accordance with Schedule 1A.
Note:
The Taxation Laws Amendment (Superannuation) Act 1992 commenced on 22 December 1992.
3E(5) [Subreg (4) standards still met]An annuity is not taken not to meet the standards in subregulation (4) for the reason only:
(a) that:
(i) the commencement day of the annuity occurs on or after 1 April in a financial year; and
(ii) the contract does not ensure that payments in that financial year meet the standard in that subregulation for the minimum amount; or
(b) that the contract does not ensure that the payments in the year in which the annuity is to end meet the standard in that subregulation for the minimum amount. 3E(6) [Annuity commencing on or after 1 July 1994]
A contract for the provision of a benefit (in this subregulation called the annuity ):
(a) that does not meet the standards of subregulation (2); and
(b) that fixes the size of the payments of benefit in a year, allowing for variation only as specified in the contract; and
(c) under which the commencement day is on or after 1 July 1994;
meets the standards of this subregulation if the contract contains provisions that at least ensure that:
(d) the standards in paragraphs (2)(g), (h) and (i) are met; and
(e) variation in payments from year to year does not exceed, in any year, the average rate of increase of the CPI in the preceding 3 years; and
(f) payments in accordance with paragraph (b) are made at least annually; and
(g) the amount paid as the purchase price is wholly converted into annuity income. 3E(7) [Annuity with bonus payments]
A contract for the provision of a benefit (in this subregulation called the annuity ) that:
(a) does not meet the standards of subregulation (2); and
(b) provides for payments whose size in a year is fixed, allowing for variation only as specified in the contract; and
(c) provides for additional payments (in this subregulation called bonus payments );
(d) the commencement day of which is on or after 1 July 1994;
meets the standards of this subregulation if the contract contains provisions at least ensuring that:
(e) in respect of the fixed-size payments - the standards in subregulation (6) are met; and
(f) the fixed-size payments amount to at least 50% of:
(i) if the provider provides annuities of the kind specified in subregulation (6) - the amount that would be payable if the annuity were wholly of that kind; or
(ii) if the provider does not provide annuities of the kind specified in subregulation (6) - the fixed-size payments are at least equal in amount to 50% of the interest payable on Commonwealth bonds that have the same value as the purchase price of the annuity and that most closely correspond in term to the term of the annuity; and
(g) the amounts of the bonus payments (if any) are reasonably proportional to the investment income from which the payments purport to be derived; and
(h) the amount of a bonus payment (if any) is notified in writing by the provider each year and is paid to the beneficiary in the year next following (except when deferral of the payment would not result, in any future year, in the rate of increase in size of the total payments for the year exceeding the average rate of increase of the CPI in the preceding 3 years). 3E(8) [Annuity failing standards]
A contract for the provision of a benefit (in this subregulation called the annuity ):
(a) that does not meet all the standards in any other provision of this regulation; and
(b) under which the commencement day is on or after the commencement of section 76 of the Taxation Laws Amendment (Superannuation) Act 1992; and
(c) that provides for:
(i) payments whose size in a year is fixed, allowing for variation only as specified in the contract; and
(ii) additional payments whose size is not fixed, derived from the application of part of the purchase price to investments by allocation of the annuity provider;
meets the standards of this subregulation if the contract contains provisions that at least ensure that:
(d) in respect of fixed-size payments - if the commencement day is on or after 1 July 1994, the standards in subregulation (6) are met; and
(e) in respect of payments whose size is not fixed - the standards in subregulation (4) are met.
Note:
The Taxation Laws Amendment (Superannuation) Act 1992 commenced on 22 December 1992.
A benefit is taken to be a pension for the purposes of the Act if it is a benefit that is provided under rules of a superannuation fund that meet the standards of subregulation (2), (4) or (6).
3F(2) [Standards for rules]Rules meets the standards of this subregulation if they contain provisions that ensure:
(a) that the pension is paid at least annually throughout the life of the primary beneficiary in accordance with paragraphs (b) and (c) and, if there is a reversionary beneficiary:
(i) throughout the reversionary beneficiary's life; or
(ii) if he or she is a child of the primary beneficiary or of a former reversionary beneficiary under the pension - at least until his or her 16th birthday; or
(iii) if the person referred to in subparagraph (ii) is a full-time student at age 16 - at least until the end of his or her full-time studies or until his or her 25th birthday (whichever occurs sooner); and
(b) that the size of the payments of benefit in a year is fixed, allowing for variation only as specified in the rules; and
(c) that, unless the Commissioner otherwise approves, the sum payable as benefit to the primary beneficiary or to the reversionary beneficiary, as the case may be, increases year by year by at least the lesser of:
(i) 5%; or
(ii) a rate equal to the rate of increase (if any) determined by comparing the quarterly CPI first published by the Australian Statistician for the second-last quarter preceding the date on which payment is to be made with the quarterly CPI first published by the Australian Statistician for that quarter in the preceding year; and
(d) that the pension does not have a residual capital value; and
(e) that the pension cannot be commuted except:
(i) if the commutation is made within 6 months after the commencement day of the pension; or
(ii) if the commutation is made within 10 years after the commencement day of the pension to the benefit of a reversionary beneficiary on the death of the primary beneficiary; or
(iii) if section 15S of the Act applies - in accordance with the section; and
(iv) if the ETP resulting from the commutation is transferred directly to the purchase of another benefit provided under rules that meet the standards of this subregulation or subregulation (3) or provided under a contract that meets the standards of subregulation 3E(2) or (3); and
(f) that, if the pension reverts or is commuted, it does not have a reversionary component greater than 100% of the benefit that was payable before the reversion or the commutation; and
(g) that the pension is not able to be transferred to a person other than a reversionary beneficiary on the death of the primary beneficiary or of another reversionary beneficiary; and
(h) that the capital value of the pension and the income from it, cannot be used as security for a borrowing. 3F(3) [Effect of additional requirements]
Rules are not taken not to meet the standards in subregulation (2) for the reason only that, although making provision meeting the standards of that subregulation, they additionally provide that:
(a) if the primary beneficiary dies within 10 years after the commencement day of the pension, a surviving reversionary beneficiary may obtain a payment equal to the total payments that the primary beneficiary would have received, if the primary beneficiary had not died, from the day of the death until the end of the period of 10 years; and
(b) if the primary beneficiary dies within 10 years after the commencement day of the pension and there is no surviving reversionary beneficiary, an amount, not exceeding the difference between the sum of the amounts paid to the primary beneficiary and the sum of the amounts that would have been so payable in the period of 10 years, is payable to the primary beneficiary's estate; and
(c) if the primary beneficiary dies within 10 years after the commencement day of the pension and there is a surviving reversionary beneficiary who also dies within that period, there is payable to the reversionary beneficiary's estate an amount determined as described in paragraph (b) as if that paragraph applied to the reversionary beneficiary. 3F(4) [Rules failing subreg (2) with no fixed benefit]
(a) that do not meet the standards in subregulation (2); and
(b) that do not fix the size of payments of benefit in a year; and
meet the standards of this subregulation if they contain provisions that at least ensure that:
(c) the standards in paragraphs (2)(g) and (h) are met; and
(d) payments are made at least annually; and
(e) on and after the commencement of section 76 of the Taxation Laws Amendment (Superannuation) Act 1992 - the payments in a year, except a payment by way of commutation, are not larger or smaller in total than, respectively, the maximum and minimum limits calculated in accordance with Schedule 1A.
Note:
The Taxation Laws Amendment (Superannuation) Act 1992 commenced on 22 December 1992.
3F(5) [Subreg (5) standards still met]Rules are not taken not to meet the standards in subregulation (4) for the reason only:
(a) that:
(i) the commencement day of the pension occurs on or after 1 April in a financial year; and
(ii) the rules do not provide for the payment of an amount in that financial year that meets the standard for the minimum amount in that subregulation; or
(b) that the rules do not ensure that the payments in the year in which the pension is to end meet the standard for the minimum amount in that subregulation. 3F(6) [Rules failing subreg (2) with fixed benefit]
(a) that do not meet the standards in subregulation (2); and
(b) that provide that the size of the payments of benefit in a year is fixed, allowing for variation only as specified in the rules; and
(c) under which the commencement day is on or after 1 July 1994;
meet the standards in this subregulation if they at least ensure that:
(d) the standards in paragraphs (2)(f), (g) and (h) are met; and
(e) variation in payments from year to year does not exceed, in any year, the average rate of increase of the CPI in the preceding 3 years; and
(f) payments in accordance with the contracted size are made at least annually; and
(g) if, under the rules, the pension can be commuted - the conversion to a lump sum is limited to a sum that is not greater than the sum determined by applying the appropriate pension valuation factor under Schedule 3 to the pension as if the commencement day were the day on which the commutation occurs.
A benefit is not taken not to meet the standards in regulation 3E or 3F by reason only that payments of benefit to the beneficiary have been properly suspended during a period when the beneficiary is the holder of a paid public office.
For the purposes of the definition of approved auditor in subsection 3(1) of the Act, the following classes of persons are specified in relation to a superannuation fund:
(a) persons who are independent registered auditors;
(ab) the Auditors-General of the Commonwealth, the States and the Territories;
(b) where all assets of the superannuation fund are in the form of life policies or deposits at call with an eligible bank or the superannuation fund has 5 members or less and those members agree not to require a registered auditor - persons who:
(i) are members of the Institute of Chartered Accountants, the Australian Society of Certified Practising Accountants or the Institute of Public Accountants or are members or fellows of the Association of Taxation and Management Accountants; and
(ii) are not trustees or members of, or contributors to, the fund, members of a management board, committee or other body exercising actual control over the policies of the fund or partners, employees or officers of such trustees, members or contributors; and
(iii) do not have actual control over the investments or administration of the fund and are not partners, employees or officers of persons having such control.
For the purposes of the definition of approved auditor in subsection 3(1) of the Act, the following classes of persons are specified in relation to an approved deposit fund and a pooled superannuation trust:
(a) independent registered auditors;
(b) the Auditors-General of the Commonwealth, the States and the Territories;
For the purposes of this regulation, a registered auditor is to be taken not to be independent in relation to a superannuation fund, an approved deposit fund or a pooled superannuation trust if the auditor is associated with the fund or trust as:
(a) a trustee of the fund or trust; or
(b) a member of the fund or trust; or
(c) a contributor to the fund; or
(d) a depositor with the fund; or
(e) a holder of units in the trust; or
(f) a member of a management board, committee or other body having control over the policies of the fund or trust; or
(g) a person having control over the investments or administration of the fund or trust; or
(h) a partner, employee or officer of a person referred to in paragraph (a), (b), (c), (d), (e), (f) or (g); or
(j) an employee or officer of the fund or trust, other than as its auditor.
For the purposes of this regulation, a registered auditor is to be taken not to be independent in relation to a pooled superannuation trust if the auditor is associated with a holder of units in the trust as:
(a) a trustee of the holder; or
(b) a member of the holder; or
(c) a contributor to the holder; or
(d) a depositor with the holder; or
(e) a member of a management board, committee or other body having control over the policies of the holder; or
(f) a person having control over the investment or administrative policies of the holder; or
(g) a partner, employee or officer of a person referred to in paragraph (a), (b), (c), (d), (e) or (f); or
(h) an employee or officer of the holder, other than as its auditor;
unless:
(j) the auditor:
(i) does not know; and
of that association; or
(ii) could not reasonably be expected to have known;
(k) the holder does not have a material interest in the trust.
In this Part, unless the contrary intention appears:
accrued retirement benefit component
, in relation to a disability superannuation pension payable to a person, means the amount worked out using the formula:
| Capital Value − |
(Capital Value × Pension Days)
Accrual Days |
where:
Capital Value
means the capital value of the pension as at the commencement day of the pension; and
(a) in the case of the pension commencing to be paid before the person turns 65 - the number of days in the period from the beginning of the commencement day of the pension to the end of the day when the person turns 65; or
(b) in any other case - 0;
Accrual Days
means the number of days in the period commencing on the first day of the eligible service period of the pension and ending on the 65th birthday of the person;
approved early retirement scheme payment
, in relation to a person, has the same meaning as in subsection 27E(4) of the Tax Act;
benefit
(Omitted by SR No 463 of 1992)
bona fide redundancy payment
, in relation to a person, has the same meaning as in subsection 27F(1) of the Tax Act;
commencement day
(Omitted by SR No 463 of 1992)
deferred annuity
means an annuity that is not presently payable;
defined benefit superannuation fund
has the meaning it would have under regulation 3 if "superannuation fund" in that regulation had the meaning given by section 15E of the Act;
disability annuity
means an annuity payable to a person as a result of a permanent disability of the person, being a disability that at least 2 registered medical practitioners have certified is likely to result in the person being unable ever to work in a job for which the person is reasonably qualified by education, training or experience, and
disability superannuation pension
has a corresponding meaning;
eligible service period
, in relation to an ETP, has the same meaning as in subsection 27A(1) of the Tax Act;
eligible service period
, in relation to a superannuation pension payable to a person, means:
(a) except where paragraph (b) applies - the period commencing on:
(i) the day on which the person joined the superannuation fund; or
whichever is the earlier, and ending on the commencement day of the pension; or
(ii) 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;
(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
the period commencing on that earlier day and ending on the commencement day of the pension;
(ii) the eligible service period of the ETP commences on an earlier day than the commencement of the period that would be the eligible service period of the pension under paragraph (a);
eligible service period
, in relation to an annuity payable to a person, means the sum of the number of days in the eligible service period in relation to the ETP that was rolled-over to purchase the annuity and the number of days in the period from the time when the annuity was purchased to the commencement day of the annuity;
ETP
(Omitted by SR No 463 of 1992)
gainful employment
, in relation to a financial year, means paid employment for at least 520 hours in that year for which the person is paid a salary of an amount that is at least 20% of:
(a) the full-time adult average weekly ordinary time earnings first published by the Australian Statistician for the March quarter in the preceding financial year multiplied by 52; or
(b) the person's HAS;
whichever is the lesser;
HAS
, in relation to a person, means the highest average annual salary of the person over any 3 consecutive financial years (including a financial year in which the person did not earn salary for the whole of the year);
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;
invalidity payment
, in relation to a person, has the same meaning as in section 27G of the Tax Act;
lump sum RBL
, in relation to a person to whom a benefit has been paid or has commenced to be paid, means:
(a) subject to paragraph (b):
(i) the amount worked out by multiplying the person's HAS by the person's lump sum reasonable benefit multiple; or
whichever is the greater; or
(ii) $175,000;
(b) if the benefit is:
(i) an ETP that was made to the person on a day (in this paragraph called the start day ) before the person reached the age of 55 years; or
the amount worked out using the formula:
(ii) a superannuation pension or annuity that does not meet the pension and annuity standards where the commencement day of the pension or annuity occurred before the person reached that age;
| RBL × [1 − (0.025 × P)] |
where:
RBL
means the amount applicable under paragraph (a); and
P
means the number of whole years in the period starting on the birthday of the person immediately before the start day or the commencement day or, if that day falls on a birthday of the person, on that birthday, and ending on the day on which the person will reach the age of 55 years;
[ CCH Note: The base lump sum RBL, indexed in accordance with reg 4C, is as follows:
| 1991/92 | $188,180 |
| 1992/93 | $196,360 |
| 1993/94 | $198,600] |
lump sum reasonable benefit multiple
, in relation to a person to whom a benefit has been paid or has commenced to be paid, means:
(a) if the eligible service period in relation to the ETP, pension or annuity commenced on or after 1 July 1990 - the number obtained by dividing the sum of:
(i) 7 times $39,970 or, if the person's HAS is less than $39,970, 7 times the person's HAS; and
(ii) 5 times the part (if any) of the person's HAS that exceeds $39,970 but does not exceed $74,220; and
by the person's HAS; or
(iii) 3 times the part (if any) of the person's HAS that exceeds $74,220;
(b) in any other case - the number worked out using the formula:
| OLD SP × OLD RBM + NEW SP × NEW RBM |
where:
OLD SP
means the number worked out by dividing the number of days in the relevant eligible service period that occurred before 1 July 1990 by the total number of days in the relevant eligible service period; and
OLD RBM
means the multiple applicable to the benefit under Schedule 2; and
NEW SP
means the number worked out by dividing the number of days in the relevant eligible service period that occurred on or after 1 July 1990 by the total number of days in the relevant eligible service period; and
NEW RBM
means the number that would be the person's lump sum reasonable benefit multiple if the relevant eligible service period had commenced on or after 1 July 1990;
[ CCH Note: The salary thresholds in para (a) of the definition of "lump sum reasonable benefit multiple", indexed in accordance with reg 4C, are set out below:
| 1991/92 | 1992/93 | 1993/94 | |
| First salary threshold | $42,980 | $44,850 | $45,360 |
| Second salary threshold | $79,810 | $83,280 | $84,230] |
net business income
, in relation to a business the gross income of which in respect of a financial year exceeds all deductions for that year with respect to the business that are allowable deductions for the purposes of the Tax Act (other than any deductions allowable under section 82AAC or 82AAT, or Division 16C of Part III, of that Act), means the amount of that excess;
net business losses
, in relation to a business where all deductions for the financial year commencing on 1 July 1990 or a later financial year with respect to the business that are allowable deductions for the purposes of the Tax Act (other than any deductions allowable under section 82AAC or 82AAT, or Division 16C of Part III, of that Act) exceed the gross income of the business in respect of that year, means the amount of that excess;
non-qualifying component
, in relation to a payment that is an immediate annuity eligible termination payment for the purposes of subsection 27A(1) of the Tax Act, has the same meaning as in that subsection;
pension and annuity standards
means:
(a) in relation to annuities - the standards of subregulation 3E(2); or
(b) in relation to pensions - the standards of subregulation 3F(2);
pension RBL
, in relation to a person to whom a benefit has been paid or has commenced to be paid, means:
(a) the amount calculated by multiplying the person's HAS by the person's pension reasonable benefit multiple; or
(b) $281,250;
whichever is the greater;
[ CCH Note: The base pension RBL, indexed in accordance with reg 4C, is as follows:
| 1991/92 | $302,420 |
| 1992/93 | $315,560 |
| 1993/94 | $319,150] |
pension reasonable benefit multiple
, in relation to a person to whom a benefit has been paid or has commenced to be paid, means:
(a) if the eligible service period in relation to the benefit commenced on or after 1 July 1990 - the number worked out using the formula:
|
M
HAS |
×15 |
where:
(i) 0.75 times $39,970 or, if the person's HAS is less than $39,970, 0.75 times the person's HAS; and
(ii) 0.55 times the part (if any) of the person's HAS that exceeds $39,970 but does not exceed $74,220; and
(iii) 0.35 times the part (if any) of the person's HAS that exceeds $74,220; or
(b) in any other case - the number worked out using the formula:
| OLD SP × OLD RBM + NEW SP × NEW RBM |
where:
OLD SP
means the number worked out by dividing the number of days in the relevant eligible service period that occurred before 1 July 1990 by the total number of days in the relevant eligible service period; and
OLD RBM
means the multiple applicable to the benefit under Schedule 2; and
NEW SP
means the number worked out by dividing the number of days in the relevant eligible service period that occurred on or after 1 July 1990 by the total number of days in the relevant eligible service period; and
NEW RBM
means the number that would be the person's pension reasonable benefit multiple if the relevant eligible service period commenced on or after 1 July 1990;
[ CCH Note: The salary thresholds in para (a) of the definition of "pension reasonable benefit multiple", indexed in accordance with reg 4C, are set out below:
| 1991/92 | 1992/93 | 1993/94 | |
| First salary threshold | $42,980 | $44,850 | $45,360 |
| Second salary threshold | $79,810 | $83,280 | $84,230] |
post-June 83 component
, in relation to an ETP, has the same meaning as in subsection 27A(1) of the Tax Act as in force on 30 June 1990;
pre-July 83 component
, in relation to an ETP, has the same meaning as in subsection 27A(1) of the Tax Act as in force on 30 June 1990;
quarter
means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December, called the March, June, September or December quarter respectively;
RBL amount
, in relation to a benefit paid or commencing to be paid to a person, means the amount of the benefit that is to be counted towards the person's reasonable benefit limits under regulation 4Q, 4R, 4S, 4T or 4U;
rebatable superannuation pension
has the same meaning as in subsection 159SJ(1) of the Tax Act;
rules
(Omitted by SR No 463 of 1992)
salary
means salary, wages, commissions, bonuses, fees, allowances or gratuities paid to a person during a financial year, and includes:
(a) other earnings (other than earnings on investments); and
(b) the amount that would be the value of a benefit to which section 57, 57A or 58 of the Fringe Benefits Tax Assessment Act 1986 applies if that benefit were not an exempt benefit; and
(c) a payment made by a company by way of remuneration to a director of the company; and
(d) in the case of a person who is an Australian citizen, or a resident of Australia within the meaning of the Tax Act - any amounts paid to the person from a source outside Australia that would fall within this definition if they had been paid from a source in Australia;
but does not include:
(e) a distribution from a trust estate; or
(f) allowances to cover expenses incurred on behalf of the person's employer or business; or
(g) any ETP; or
(h) a superannuation pension or an annuity; or
(i) a payment to which section 26AC or 26AD of the Tax Act applies;
standard indexation rate
, in relation to a financial year, means the rate determined under regulation 4DA in respect of that year;
superannuation fund
has the same meaning as in subsection 15E(1) of the Act;
taxed element
, in relation to the post-June 83 component of an ETP, has the same meaning as in subsection 27A(1) of the Tax Act as in force on 30 June 1990;
undeducted purchase price
, in relation to a superannuation pension, has the same meaning as in subsection 27A(1) of the Tax Act;
untaxed element
, in relation to the post-June 83 component of an ETP, has the same meaning as in subsection 27A(1) of the Tax Act as in force on 30 June 1990.
For the purposes of the definition of salary in subregulation (1):
(a) amounts to which paragraph (d) of that definition applies are to be converted into Australian currency at the rate that is the average of the exchange rates for the currency in which the foreign source amounts were paid at the start, and at the end, of the financial year in which the amounts were paid; and
(i) at the start, and at the end, of the financial year in which the amounts were paid; or
(ii) if the amounts were not paid throughout a financial year - at the start, and at the end, of the period over which the amounts were paid; and
(b) if a person carries on a business (either alone or in partnership with another person):
(i) the person's salary is to be increased by the person's share of the net business income; or
(ii) the person's salary is to be decreased by the person's share of the net business losses; and
(c) if:
(i) a person is an associate of the person's employer; and
the person's salary for the purposes of this Part is taken to be the arm's length salary.
(ii) the person's salary is greater or lesser than the amount (in this paragraph called the arm's length salary ) that would, in the opinion of the Commissioner, be the person's salary if the person had not been an associate of the employer;
In determining the arm's length salary under subregulation (2), the Commissioner is to have regard to:
(a) the nature of the work performed; and
(b) the hours worked; and
(c) the salary that would be payable to a person who is not an associate of the employer for performing similar work for similar hours; and
(d) any other relevant matters.
For the purposes of the definition of HAS in subregulation 4A(1), where a person has earned salary but not during 3 consecutive financial years, that definition applies to:
(a) if the person has earned salary for at least 2 full consecutive financial years - the person's average salary for those 2 years; or
(b) if the person has earned salary for at least one full financial year but less than 2 full consecutive financial years - the person's salary for that financial year; or
(c) in any other case - the person's final annualised salary.
Subject to subregulations (4) and (5), where the Commissioner is to calculate a person's reasonable benefit limits in relation to a benefit paid, or commencing to be paid, to the person at a particular time (in this subregulation called the commencement time ), the person's HAS is to be indexed in accordance with subregulation (3) if any of the following paragraphs applies to the person:
(a) the person had reached the age of 55 years on or before 1 July 1990;
(b) the person had, after reaching the age of 55 years, been engaged in gainful employment during each of at least 3 consecutive financial years;
(c) the person had not, before reaching the age of 65 years:
(i) received an ETP, other than:
(A) an ETP that was paid before 16 February 1990; or
(B) an ETP that was paid on or after that day and before 1 July 1990 from an employer of whom the person was not an associate; or
(C) an ETP that consisted wholly of undeducted contributions, concessional components or non-qualifying components or wholly of a combination of undeducted contributions, concessional components and non-qualifying components;
(D) an ETP that is a result of the commutation of a deferred annuity and is paid within 7 days of the person's 65th birthday; or
(E) an ETP that is a result of the commutation of a superannuation pension or annuity the commencement day of which is before 16 February 1990; or
(F) an ETP paid on or after 1 July 1992 to which subsection 27A(12B) or (12E) of the Tax Act applies; orthat the person has not rolled-over; and
(G) an ETP paid on or after 1 July 1992 that the Commissioner determines to be in excess of reasonable benefit limits;
(ii) commenced to receive a superannuation pension or annuity, other than:
(A) a superannuation pension or annuity the commencement day of which is before 16 February 1990; or
(B) a pension or annuity that meets the pension and annuity standards;
(d) the person has received or become entitled to receive an invalidity payment, a disability superannuation pension or a disability annuity;
(e) the person has received or become entitled to receive an approved early retirement scheme payment or a bona fide redundancy payment.
Subject to subregulation (3A), the HAS of a person to whom subregulation (2) applies is to be indexed by:
(a) if paragraph (2)(a) applies - multiplying the person's HAS by the index number for the quarter 2 quarters before the quarter in which:
(i) the ETP was paid; or
as the case may be, (in this subregulation called the end quarter ) and dividing the product by:
(ii) the commencement day of the pension or annuity falls;
(iii) the index number for the March quarter in the last financial year on which the person's HAS was based; or
(iv) if that year is before the financial year in which the person reached the age of 55 years - the index number for the March quarter in the financial year in which the person reached that age; or
(b) if paragraph (2)(b) applies - multiplying the person's HAS by the index number for:
(i) if the person had ceased to be engaged in gainful employment before the financial year in which the benefit was paid or commenced to be paid - the March quarter in the last of the years referred to in that paragraph; or
(ii) if the person is in gainful employment in the financial year when the benefit was paid or commenced to be paid - the end quarter;
(iii) the index number for the March quarter in the last financial year on which the person's HAS was based; or
(iv) if that year is before the financial year in which the person reached the age of 55 years - the index number for the March quarter in the financial year in which the person reached that age; or
(c) if paragraph (2)(c) applies - multiplying the person's HAS by the index number for the end quarter and dividing the product by the index number for the March quarter in the last financial year on which the person's HAS was based; or
(d) if paragraph (2)(d) applies and the benefit was paid before 1 July 1992 - multiplying the person's HAS by the index number for the end quarter and dividing the product by the index number for the March quarter in the financial year when the person received, or became entitled to receive, the payment; or
(e) if paragraph (2)(d) applies and the benefit was paid on or after 1 July 1992 - multiplying the person's HAS on the day when the benefit is paid or became payable by the index number for the end quarter and dividing the product by the index number for the March quarter in the financial year in which the person received, or became entitled to receive, the payment; or
(f) if paragraph (2)(e) applies and the benefit was paid before 1 July 1992 - multiplying the person's HAS by the index number for the end quarter or the March quarter for the financial year 5 years after the financial year in which the person received, or became entitled to receive, the payment, whichever is the earlier, and dividing the product by the index number for the March quarter in the financial year in which the person received, or became entitled to receive, the payment; or
(g) if paragraph (2)(e) applies and the benefit was paid on or after 1 July 1992 - multiplying the person's HAS on the day when the benefit is paid, or became payable, by the index number for the end quarter or the March quarter for the financial year 5 years after the financial year in which the person received, or became entitled to receive, the payment (whichever is the earlier) and dividing the product by the index number for the March quarter in the financial year in which the person received, or became entitled to receive, the payment.
(a) any of the paragraphs of subregulation (2) applies to a person; and
(b) at any time the person's salary in respect of a year of income decreases by at least 20% in relation to a previous year of income; and
(c) the RBL referable to the person's HAS before the decrease is greater than the RBL referable to the person's HAS after the decrease;
a reference in subregulation (3) to HAS is a reference to the person's HAS immediately before the decrease.
Subregulation (3) does not apply to a person in relation to a benefit paid or commencing to be paid if:
(a) in a case to which paragraph (2)(b) or (c) applies - the benefit was paid within, or the commencement day of the benefit occurred within, 12 months of the end of the last financial year on which the person's HAS was based; or
(b) in a case to which paragraph (2)(d) or (e) applies - the benefit was paid within, or the commencement day of the benefit occurred within, 12 months of the person receiving or becoming entitled to receive the payment referred to in that paragraph; or
(c) that subregulation would result in a reduction of the person's HAS. 4B(5) [Applicable method of indexation]
If more than one of the paragraphs of subregulation (2) applies to a person, the person's HAS is to be indexed under the applicable paragraph of subregulation (3) that produces the higher or highest amount.
Where an amount worked out under subregulation (3) is not a multiple of $10, it is to be increased to the nearest multiple of $10.
This Part is to have effect, on 1 July 1991 and each subsequent 1 July, as if there were substituted for:
(a) the amount referred to in subparagraph (a)(ii) of the definition of lump sum RBL in subregulation 4A(1); and
(b) each amount referred to in paragraph (a) of the definition of lump sum reasonable benefit multiple in subregulation 4A(1); and
(c) the amount referred to in paragraph (b) of the definition of pension RBL in subregulation 4A(1); and
(d) each amount referred to in paragraph (a) of the definition of pension reasonable benefit multiple in subregulation 4A(1); and
(e) the amount referred to in regulation 4H;
or for the amount last substituted for that amount under this regulation (in this regulation called the base amount ) a new amount worked out by:
(f) multiplying the base amount by the index number for the March quarter immediately preceding that 1 July; and
(g) dividing the product by the index number for the previous March quarter. 4C(2) [Substituted index number]
Subject to subregulation (3), if at any time, whether before or after the commencement of these regulations, the Australian Statistician publishes an index number in respect of a quarter in substitution for an index number previously published, that later index number is to be disregarded for the purposes of this Part.
4C(3) [Change of reference base]If at any time the Australian Statistician changes the reference base for the index number, regard is to be had, for the purposes of the operation of this Part after the change took place, only to index numbers published in terms of the new reference base.
4C(4) [Indexation by $10 multiples]Where an amount to be substituted under this regulation is not a multiple of $10, it is to be increased to the nearest multiple of $10.
In this regulation, annual value , in relation to a pension, means the amount that is worked out by multiplying the greatest number of payments of the pension that could be made in respect of the period of 12 months beginning on the commencement day of that pension by the amount of the first regular payment of the pension.
Subject to subregulations (2) and (3), the capital value of a superannuation pension that has commenced to be paid, including a residual pension payable on partial commutation of another superannuation pension, is the amount worked out using the formula:
| (AV × PVF) − UPP + RCV |
where:
AV
means the annual value of the pension; and
PVF
means the pension valuation factor applicable to the pension under Schedule 3; and
UPP
means the undeducted purchase price of the pension; and
RCV
means the present value of the residual capital value, if any, of the pension, calculated in accordance with a method determined in writing by the Commissioner.
(a) a superannuation pension referred to in subparagraph (b)(ii) of the definition of superannuation pension in subsection 15E(1) of the Act; and
(b) a superannuation pension that is not payable for life;
is the amount calculated in accordance with the method determined by the Commissioner in writing in relation to the pension.
4D(3) [Pension replaced by pension from another fund]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 that has commenced to be paid to the person from a superannuation fund; and
(b) becomes entitled to be paid a superannuation pension from another superannuation fund;
is the amount worked out using the formula:
| (Y × PVF) − U + R |
where:
Y
means the amount by which the annual value of the pension referred to in paragraph (b) exceeds the annual value of the pension referred to in paragraph (a);
U
means the amount by which the UPP of the pension referred to in paragraph (b) exceeds the UPP of the pension referred to in paragraph (a);
R
means the amount by which the RCV of the pension referred to in paragraph (b) exceeds the RCV of the pension referred to in paragraph (a).
In subregulation (3), PVF , UPP and RCV have the same respective meanings as in subregulation (1).
Subject to subregulation (2), the Commissioner may, from time to time, determine in writing the standard indexation rate for the purposes of these Regulations.
4DA(2) [Financial year]A rate determined under subregulation (1) does not apply in relation to the financial year in which it is determined or to an earlier financial year.
Where:
(a) a person is required to provide information within a period prescribed under regulation 4F or 4J; and
(b) the person applies in writing to the Commissioner, before the end of the period, for an extension of that period;
the Commissioner may, in writing, allow the person additional time in which to provide the information.
For the purposes of subsection 15F(1) of the Act, the period within which the information to which that provision relates must be provided is the period ending on 30 September 1990.
4F(2) [Information required]The information required for the purposes of subsection 15F(1) of the Act is the information specified in Schedule 4.
The information required for the purposes of subsections 15G(1) and (3) of the Act is the information specified in Schedule 5.
4G(1A) [Payer's tax file number]For the purposes of subsection 15G(1) of the Act, the tax file number of the payer is prescribed information.
For the purposes of subsection 15G(3) and paragraph 15G(13)(a) of the Act, the period within which the information to which those provisions relate must be provided by a payer in respect of the payment to a person of an ETP, or the commencement of payment to a person of a superannuation pension or of an annuity that is presently payable, on a day (in this regulation called the payment day ) is:
(a) if the person had, on or before the 10th day of the month after the month in which the payment day falls, provided his or her tax file number to the payer in a manner approved by the Commissioner - 14 days after the end of the month in which the payment day falls; or
(b) if the person had, on or before the 10th day of the month after the month in which the payment day falls, advised the payer that the person has made an application for a tax file number and that the application is pending - 14 days after the end of the month after the month in which the payment day falls; or
(c) in any other case - 14 days after the end of the month in which the payment day falls. 4G(3) [Earliest date for notice]
Notwithstanding subregulation (2), information to which that subregulation relates need not be provided before 14 September 1990.
4G(4) [Time for notice extended]Where the period within which information must be provided by a payer under subsection 15G(1) of the Act is extended under subsection 15G(13) of the Act, the period within which related information must be provided for the purposes of subsection 15G(3) of the Act is also extended by the same number of days.
4G(5) [Notice of payments between 16 February and 30 June 1990]For the purposes of paragraph 15G(13)(b) of the Act, the period within which the information to which that provision relates must be provided by a person is the period ending on 30 September 1990.
4G(6) [Information required for payments between 16/2/90 and 30/6/90]The information required for the purposes of subsection 15G(7) of the Act is the information specified in Schedule 6.
The amount for the purposes of subsection 15G(4) of the Act is $5,000.
The period within which the details of the transaction referred to in paragraph 15J(1)(b) of the Act must be provided by a person is 28 days or such longer period as the Commissioner reasonably allows after the transaction takes place.
The information required for the purposes of subsection 15J(1) of the Act is the information specified in Schedule 7.
4J(3) [Commutation or residual capital value payment]The information required for the purposes of subsection 15J(2) of the Act is the information specified in Schedule 5, other than the information in that Schedule relating to superannuation pensions and annuities.
4J(4) [Time for notice: roll-over of commutation or residual capital value payment]The period within which the details of the transaction referred to in paragraph 15J(2)(d) of the Act must be provided by a payer is 14 days after the end of the month in which the transaction takes place.
4J(5) [Transaction details before 14 September 1990]A payer is not in breach of subregulation (4) in relation to the provision of details of a transaction that took place at any time before 14 September 1990 if those details were not provided before that date.
For the purposes of subsections 15K(1) and 15L(1) of the Act, the period within which the Commissioner must determine whether a benefit is in excess of the reasonable benefit limits and, if it is, the extent to which it exceeds those limits is:
(a) if the notice under subsection 15G(1) of the Act is received before 1 May 1991 - the period of 12 months after the day on which the notice is received, reduced by the number of days between 1 July 1990 and the day on which the notice is received; or
(b) in any other case - 60 days after receiving the notice.
For the purposes of subsection 15K(6) of the Act, the period within which the Commissioner must revise a determination is:
(a) if the notice under subsection 15J(1) of the Act is received before 1 May 1991 - the period of 12 months after the day on which the notice is received, reduced by the number of days between 1 July 1990 and the day on which the notice is received; or
(b) in any other case - 60 days after receiving the notice.
For the purposes of subsection 15K(7) of the Act, the period within which a person may elect to commute a superannuation pension or annuity is 6 months after the commencement day of the pension or annuity.
4K(4) [Revised determination after commutation]For the purposes of subsection 15K(7) of the Act, the period within which the Commissioner must make a revised determination is:
(a) if notice of the commutation is received before 1 May 1991 - the period of 12 months after the day on which the notice is received, reduced by the number of days between 1 July 1990 and the day on which the notice is received; or
(b) in any other case - 60 days after receiving notice of the commutation.
For the purposes of subsection 15K(8) of the Act, the period within which the Commissioner must revise a determination is:
(a) if the applicant has applied to the Commissioner before 1 May 1991 for revision of the determination - the period of 12 months after the person has applied to the Commissioner for revision of the determination, reduced by the number of days from the beginning of 1 July 1990 to the end of the day on which the application was made; or
(b) if the applicant has applied to the Commissioner on or after 1 May 1991 for revision of the determination - the period of 60 days after the person has applied to the Commissioner for revision of the determination.
The information referred to in subsection 15P(1) of the Act is:
(a) a copy of any determination made by the Commissioner in relation to an ETP previously paid to the person or a superannuation pension or annuity that previously commenced to be paid to the person; and
(b) the indexed value of the RBL amount of any such ETP, pension or annuity; and
(c) in the case of a benefit paid on or after 1 July 1992 that is referred to in subregulation (3) - the value of the RBL amount of any ETP, pension or annuity of that kind.
For the purposes of subregulation (1), the indexed value of the RBL amount of an ETP, superannuation pension or annuity, is the amount worked out by:
(a) multiplying the RBL amount of that ETP, pension or annuity by the index number for the quarter 2 quarters before the quarter in which the benefit referred to in paragraph 15P(1)(a) or (b) of the Act was paid or the commencement day of the benefit falls; and
(b) dividing the product by the index number for the quarter in which the benefit about which the information was sought was paid or the commencement day of the benefit falls. 4L(3) [No indexation of value of RBL]
Subregulation (2) does not apply to a benefit about which the information was sought if the benefit referred to in paragraph 15P(1)(a) or (b) of the Act was paid within, or the commencement day of the benefit occurred within, 12 months of that first-mentioned benefit being paid or the commencement day of the first-mentioned benefit occurring.
For the purposes of subsection 15L(1) of the Act, an interim determination is to be made in the same manner as a determination under subsection 15K(1) of the Act applying the following rules:
(a) if the Commissioner does not know a person's HAS and paragraph 4W(1)(ba) does not apply - the Commissioner is to assume that:
(i) the person's lump sum RBL is determined under subparagraph (a)(ii) of the definition of lump sum RBL in subregulation 4A(1) or, if the benefit was paid before, or the commencement day of the benefit occurred before, the person reached the age of 55 years, under that subparagraph as affected by paragraph (b) of that definition; and
or, if a greater RBL is applicable to the person under regulation 4ZA (including any amount of earnings referred to in paragraph 4ZA(1)(c) that the Commissioner has been informed about) or 4ZB, that greater RBL;
(ii) the person's pension RBL is determined under paragraph (b) of the definition of pension RBL in subregulation 4A(1);
(b) if the Commissioner does not know:
(i) whether a reversion applies to a superannuation pension payable to a person; or
the Commissioner is to assume that a reversion of 85% applies to the pension;
(ii) the level of a reversion that applies to a pension payable to a person;
(c) 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;
(d) if the Commissioner does not know whether a superannuation pension is a rebatable superannuation pension - the Commissioner is to assume that it is;
(e) if the Commissioner does not know whether an ETP, a superannuation pension or an annuity 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;
(f) 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;
(g) if the Commissioner does not know a person's old RBM - the Commissioner is to assume that the old RBM is:
(i) if the person's benefits are to be assessed against the lump sum RBL - 7; or
(ii) in any other case - 11.25;
(h) 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;
(j) if the Commissioner does not know whether a superannuation pension or an annuity payable to a person as a 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;
(k) if the Commissioner does not know whether a superannuation pension is payable for life - the Commissioner is to assume that it is;
(m) if the Commissioner does not know whether an ETP has been paid to the trustee of the estate of a deceased person - the Commissioner is to assume that it has not.
For the purposes of subsection 15M(1) of the Act, an application for an amendment of an interim determination must be made within 60 days after notice of the determination was given.
For the purposes of subsection 15M(1) of the Act, an application for an amendment of an interim determination to which subsection 15Q(3) of the Act applies must be made:
(a) within 1 year after the end of the financial year in which the payment to which the determination relates was made; or
(b) within such further period as the Commissioner allows.
For the purposes of subsections 15N(1) and (4) of the Act, an application for an amendment of an interim determination must be made in accordance with a form approved in writing by the Commissioner.
4N(3) [Circumstances warranting application for amendment]For the purposes of subsection 15N(1) of the Act, the circumstances in which a person may apply for an amendment of an interim determination are where the person is able to provide relevant information that was not available to the Commissioner when the Commissioner made the determination under subsection 15L(1) of the Act.
4N(4) [Time for amending interim determination]For the purposes of section 15N of the Act, the period within which the Commissioner may amend an interim determination is 60 days after receiving the application for amendment.
4N(5) [Special circumstances warranting application out of time]For the purposes of subsection 15N(4) of the Act, the circumstances in which a person may make an application under that subsection are where:
(a) 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 subregulation (1); and
(b) the person is able to provide relevant information that was not available to the Commissioner when the Commissioner made the determination under subsection 15L(1) of the Act.
In making a determination under section 15K of the Act in relation to a benefit paid or commencing to be paid to a person (in this regulation called the current benefit ), the Commissioner is to disregard the following benefits received by the person:
(a) an ETP made to the person before 16 February 1990;
(b) an ETP made to the person on or after 16 February 1990 and before 1 July 1990 by an employer of whom the person is not an associate;
(c) an ETP made to the person as a result of the commutation of, or the residual capital value of, a superannuation pension or annuity the commencement day of which is before 1 July 1990;
(d) a residual pension or residual annuity payable on partial commutation of another superannuation pension or annuity where the commencement day of the other pension or annuity is before 1 July 1990;
(e) a residual pension or residual annuity payable on partial commutation of another superannuation pension or annuity where the other pension or annuity did not meet the pension and annuity standards;
(f) an ETP paid as a result of the commutation of, or the residual capital value of, a superannuation pension or annuity that did not meet the pension and annuity standards;
(g) a superannuation pension or annuity that:
(i) is payable to a 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;
(h) an ETP arising from the commutation of a superannuation pension or annuity to which paragraph (g) applies;
(j) a superannuation pension the commencement day of which is before 16 February 1990;
(k) an ETP paid to a person in the capacity of a trustee of a trust estate;
(m) an annuity the commencement day of which is before 16 February 1990;
(n) a benefit to which regulation 4V applies;
(o) an ETP that has been made because of the commutation of a superannuation pension or an annuity payable as a result of the death of another person, being an ETP to which subsection 15G(1) of the Act does not apply because of subsection 15G(5) of the Act;
(p)an ETP paid to a charitable or religious body;
(q) an ETP, a superannuation pension or an annuity paid to a person who has not turned 18 because of:
(i) the death of another person; or
(ii) a disability of another person that 2 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 by reason of education, experience or training.
Subject to subregulation (3), in making a determination under section 15K of the Act in relation to the current benefit, the Commissioner is to take into account the RBL amount of each of the following benefits previously received by the person, not including an amount that has been determined under paragraph 4W(1)(a) or (b) to exceed the reasonable benefit limits:
(a) an ETP made to the person on or after 16 February 1990, other than a payment referred to in paragraph (1)(b);
(b) the capital value of a superannuation pension the commencement day of which is on or after 16 February 1990;
(c) the amount of the ETP that was rolled-over to purchase an annuity the commencement day of which is on or after 16 February 1990.
(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 taken into account under paragraph (2)(b) is to be reduced by so much of the amount rolled-over (other than undeducted contributions and concessional components) as does not exceed the amount referred to in paragraph (2)(b).
If, on or after 1 July 1992, a person:
(a) 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) 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 taken into account under paragraph (2)(b) is to be reduced by so much of the adjustment amount specified in subregulation (3B) as does not exceed the amount referred to in paragraph (2)(b).
The adjustment amount referred to in subregulation (3A) is:
(a) in a case in which the amount rolled-over is rolled-over within 12 months of the commencement of the payment of a superannuation pension to the person - the amount rolled-over, other than undeducted contributions and concessional components; or
(b) in any other case - the amount worked out using the formula:
|
ROA × QIN2
QIN1 |
where:
ROA
is the amount rolled-over, other than undeducted contributions and concessional components;
QIN1
is the index number for the quarter 2 quarters before the quarter when the roll-over of the residual capital value of the superannuation pension referred to in paragraph (3A)(a) or the roll-over of the commutation referred to in paragraph (3A)(b) occurred;
QIN2
is the index number for the quarter when the commencement day of the superannuation pension occurs.
If, in respect of a benefit payable 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; or
(b) a person commutes the whole or a part of an annuity and rolls-over the whole or a part of the resulting ETP;
the amount taken into account under paragraph (2)(c) is to be reduced by so much of the amount rolled-over (other than undeducted contributions and concessional components) as does not exceed the amount referred to in paragraph (2)(c).
(a) rolls-over an amount that represents the whole or a part of the residual capital value of an annuity paid on or after 1 July 1992; or
(b) commutes the whole or a part of an annuity paid on or after 1 July 1992 and rolls-over the whole or a part of the resulting ETP;
the amount taken into account under paragraph (2)(c) is to be reduced by so much of the adjustment amount specified in subregulation (4B) as does not exceed the amount referred to in paragraph (2)(c).
The adjustment amount referred to in subregulation (4A) is:
(a) in a case in which the amount rolled-over is rolled-over within 12 months of the commencement of the payment of an annuity to the person - the amount rolled-over, other than undeducted contributions and concessional components; or
(b) in any other case - the amount worked out using the formula:
|
ROA × QIN2
QIN1 |
where:
ROA
is the amount rolled-over, other than undeducted contributions and concessional components;
QIN1
is the index number for the quarter 2 quarters before the quarter when the roll-over of the residual capital value of the annuity referred to in paragraph (4A)(a) or the roll-over of the commutation referred to in paragraph (4A)(b) occurred;
QIN2
is the index number for the quarter when the commencement day of the annuity occurs.
Subject to subregulations (6) and (7), the RBL amount of a benefit previously received by a person, or the part of that amount that is taken into account under subregulation (2), is to be indexed by:
(a) multiplying that amount by the index number for the quarter 2 quarters before the quarter in which:
(i) if the current benefit is an ETP - the benefit was paid; or
(ii) if the current benefit is a superannuation pension or annuity - the commencement day of the pension or annuity falls; and
(b) dividing the product by the index number for the quarter:
(i) if the benefit previously paid was an ETP - in which the payment was made; or
(ii) if the benefit previously paid was a superannuation pension or annuity - in which the commencement day of the pension or annuity falls.
(a) subsection 15F(1) of the Act applies to a person; and
(b) the person receives an ETP or commences to receive payments of a superannuation pension or an annuity; and
(c) paragraph 4ZA(1)(c) or (d) applies to the person; and
(d) the sum of:
(i) the amount of an ETP to which subregulation (2) applies, other than any part that consists of undeducted contributions, concessional components, non-qualifying components or excessive components; and
(ii) the amount of the capital value of a superannuation pension to which subregulation (2) applies, other than any part that has been determined under paragraph 4W(1)(a) or (b) to exceed the reasonable benefit limits; and
is less than the amount applicable to the person under paragraph 4ZA(1)(c) or (d);
(iii) the amount of an ETP (other than any part that consists of undeducted contributions or concessional components) that was rolled-over to purchase an annuity to which subregulation (2) applies, other than any part that has been determined under paragraph 4W(1)(a) or (b) to be in excess of the reasonable benefit limits;
the benefits referred to in paragraph (d) are not to be indexed under subregulation (5).
Subregulation (5) does not apply to a person in relation to a benefit previously paid or commencing to be paid 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.
4P(8) [Cents to be disregarded]Where an amount worked out under subregulation (5) includes a number of cents, the cents are to be disregarded.
The following amounts are to be counted towards a person's reasonable benefit limits in relation to an ETP paid to the person by a superannuation fund or an approved deposit fund:
(a) 100% of the pre-July 83 component of the payment;
(b) 100% of the taxed element of the post-June 83 component of the payment;
(c) 85% of the untaxed element of the post-June 83 component of the payment.
The following amounts are to be counted towards the reasonable benefit limits of a person in respect of a superannuation pension (other than a disability superannuation pension) payable to the person:
(a) the amount worked out by multiplying the capital value of the pension by the number of days (if any) in the eligible service period of the pension that occurred before 1 July 1983 and dividing the product by the total number of days in the eligible service period;
(b) if the pension is a rebatable superannuation pension - the amount worked out by multiplying the capital value of the pension by the number of days in the eligible service period of the pension that occurred after 30 June 1983 and dividing the product by the total number of days in the eligible service period;
(c) if the pension is not a rebatable superannuation pension - 80% of the amount referred to in paragraph (b). 4R(2) [Disability superannuation pension]
The following amounts are to be counted towards the reasonable benefit limits of a person in respect of a disability superannuation pension payable to the person:
(a) the amount worked out by multiplying the accrued retirement benefit component of the pension by the number of days (if any) in the eligible service period of the pension that occurred before 1 July 1983 and dividing the product by the total number of days in the eligible service period;
(b) if the pension is a rebatable superannuation pension - the amount worked out by multiplying the accrued retirement benefit component of the pension by the number of days in the eligible service period of the pension that occurred after 30 June 1983 and dividing the product by the total number of days in the eligible service period;
(c) if the pension is not a rebatable superannuation pension - 80% of the amount referred to in paragraph (b).
Where an ETP is paid by a life assurance company or a registered organisation to a person, the amount that is to be counted towards the reasonable benefit limits of the person is:
(a) if the payment was the result of the commutation of the whole or part of an annuity that met the pension and annuity standards - the whole of the payment, other than any part of the payment that consists of undeducted contributions, concessional components or non-qualifying components; or
(b) if the payment was the result of the commutation of a deferred annuity - the whole of the payment, other than any part of the payment that consists of undeducted contributions, concessional components or non-qualifying components.
Where a payer commences to make payments of an annuity to a person:
(a) subject to paragraph (b), the following amounts of the ETP rolled-over to purchase the annuity are to be counted towards the reasonable benefit limits of the person:
(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 annuity commenced to be paid as the result of the partial commutation of another annuity that met the pension and annuity standards - so much of the amount calculated under paragraph (a) as is not attributable to the payment counted towards the reasonable benefit limits of the person under paragraph 4S(a) is to be counted towards the reasonable benefit limits of the person.
Where an ETP is paid by an employer to an employee, the amount that is counted towards the reasonable benefit limits of the employee is:
(a) if the employee is an associate of the employer - the sum of:
(i) 100% of the pre-July 83 component of the payment; and
(ii) 85% of the post-June 83 component of the payment; or
(b) if the employee is not such an associate - 85% of that part of the post-June 83 component of the payment worked out in accordance with the following table:
| Financial year in which payment is made | Percentage of post-June 83 component to be considered |
| 1990/91 | 20% |
| 1991/92 | 40% |
| 1992/93 | 60% |
| 1993/94 | 80% |
| 1994/95 and subsequent years | 100% |
In this regulation:
(a) in relation to a body corporate, a director or other officer, however described, of that body; and
(b) a person engaged under a contract for services.
If an ETP is paid to an employee out of a trust scheme of a kind that is generally known as an "employee share participation scheme", the amount that is counted towards the reasonable benefit limits of the employee is:
(a) if the employee is an associate of the employer - the sum of:
(i) 100% of the pre-July 83 component of the payment; and
(ii) 85% of the post-June 83 component of the payment; or
(b) if the employee is not an associate of the employer - 85% of the part of the post-June 83 component of the payment that is calculated under the following table:
| Financial year, or other period, in which payment is made | % of post-June 83 component to be counted |
| 24 December 1991 to 30 June 1993 | 20% |
| 1993/94 | 40% |
| 1994/95 | 60% |
| 1995/96 | 80% |
| 1996/97 | 100% |
In this regulation:
(a) in relation to a body corporate - a director or other officer, however described, of the body; and
(b) a person engaged under a contract for services.
Where the Commissioner revises a determination in relation to a person under subsection 15K(6) or (7) of the Act, any amounts that were, under the determination being revised, counted towards the person's reasonable benefit limits in relation to a superannuation pension or annuity that the person has commuted in whole or in part and that met the pension and annuity standards or an ETP that the person has rolled-over are to be disregarded for the purposes of the revised determination and any later determination.
Subject to subregulation (2), in making a determination for the purpose of section 15K of the Act in relation to an ETP paid to a person, or a superannuation pension or annuity that has become payable to a person:
(a) if the sum of the amounts to be taken into account under regulation 4P in relation to the person is equal to or greater than the person's lump sum RBL or pension RBL, whichever is applicable - the Commissioner is to determine that the whole of the RBL amount of the ETP, pension or annuity is in excess of the reasonable benefit limits; or
(b) if paragraph (a) does not apply but the sum of:
(i) the sum of the amounts to be taken into account under regulation 4P in relation to the person; and
is greater than the person's lump sum RBL or pension RBL, whichever is applicable - the Commissioner is to determine that so much of the RBL amount of the ETP, pension or annuity as does not exceed the amount of that excess is in excess of the reasonable benefit limits; or
(ii) the RBL amount of the ETP, pension or annuity;
(ba) if the sum of:
(i) the amounts to be taken into account under regulation 4P in relation to the person; and
is less than, or equal to:
(ii) the RBL amount of the ETP, pension or annuity;
(iii) in a case to which regulation 4X or 4Z applies - the reasonable benefit limits referred to in:
(A) subparagraph (a)(ii) or (b)(ii) of the definition of lump sum RBL in subregulation 4A(1); orwhichever is applicable; or
(B) paragraph (b) of the definition of pension RBL in subregulation 4A(1);
(iv) in a case to which regulation 4ZA or 4ZB applies - the reasonable benefit limits applicable in accordance with that regulation;
the Commissioner is to determine that the whole of the ETP, pension or annuity is within the reasonable benefit limits; or
(c) in any other case - the Commissioner is to determine that the whole of the RBL amount of the ETP, pension or annuity is within the reasonable benefit limits.
(a) a benefit is paid, or commences to be paid, to a person as the result of the death of another person; and
(b) the benefit is not a benefit referred to in paragraph 4P(1)(g), (h), or (o) or subparagraph 4P(1)(q)(i);
the Commissioner is to determine that the whole of the RBL amount of the ETP, pension or annuity is within the reasonable benefit limits.
(Omitted by SR No 148 of 1991.)
REGULATION 4X ASSESSMENT OF BENEFITS AGAINST LUMP SUM RBL 4X(1) [Benefits to be assessed against lump sum RBL]
Subject to subregulations (2) and (3), a benefit, being an ETP paid to a person, or a superannuation pension or annuity that commences to be paid to a person, is to be assessed against the lump sum RBL if:
(a) the benefit is an ETP and the sum of:
(i) the amount of the benefit (other than any part of the benefit that consists of undeducted contributions, concessional components or non-qualifying components); and
(ii) the qualifying portions of any ETP's previously made to the person; and
is more than 50% of:
(iii) the qualifying portions of any benefits previously paid to the person, being benefits that were pensions or annuities that did not comply with the pension and annuity standards;
(iv) the sum of the qualifying portions of all benefits previously paid or payable to the person and the amount referred to in subparagraph (i); or
(v) the person's pension RBL; or
(b) the benefit is a superannuation pension or annuity that complies with the pension and annuity standards and the sum of:
(i) the amount that is:
(A) the capital value of the superannuation pension; oras the case requires; and
(B) the amount of the ETP rolled-over to purchase the annuity (other than any part that consists of undeducted contributions or concessional components);
is less than 50% of:
(ii) the qualifying portions of any superannuation pensions or annuities previously paid to the person that complied with the pension and annuity standards;
(iii) the sum of the qualifying portions of all benefits previously paid or payable to the person and the amount referred to in subparagraph (i); or
whichever is the lesser; or
(iv) the person's pension RBL;
(c) the benefit is a superannuation pension or annuity that does not comply with the pension and annuity standards and the sum of:
(i) the amount that is:
(A) the capital value of the superannuation pension; oras the case requires; and
(B) the amount of the ETP rolled-over to purchase the annuity (other than any part that consists of undeducted contributions or concessional components);
(ii) the qualifying portions of any superannuation pensions or annuities previously paid to the person that did not comply with the pension and annuity standards; and
is more than 50% of:
(iii) the qualifying portions of any ETP's previously made to the person;
(iv) the sum of the qualifying portions of all benefits previously paid or payable to the person and the amount referred to in subparagraph (i); or
(v) the person's pension RBL.
If, before the attainment by a person referred to in subregulation (1) of the age of 55 years:
(a) the person had previously received an ETP; or
(b) the commencement day of a superannuation pension or annuity payable to the person that does not meet the pension or annuity standards occurred;
the reference in that subregulation to 50% of the sum of the qualifying portions of all benefits previously paid or payable to the person and the amount referred to in subparagraph (1)(a)(i), (b)(i) or (c)(i), as the case may be, is a reference to:
(c) 50% of the total of the sum of the qualifying portions of all benefits previously paid or payable to the person (other than undeducted contributions, concessional components or non-qualifying components) and the amount referred to in subparagraph (1)(a)(i), (b)(i) or (c)(i), as the case may be; or
(d) the person's lump sum RBL;
whichever is the lesser.
(a) any of the paragraphs of subregulation (1) applies to a person; and
(b) the total of:
(i) the value of a superannuation pension or annuity that has commenced to be paid (in this subregulation called "the value of the current benefit" ), or the ETP paid, to that person; and
is greater than the person's pension RBL;
(ii) the sum of the qualifying portions of all benefits previously paid or payable to the person;
the amount to be assessed against the lump sum RBL is the amount of the value of the current benefit or ETP less the amount by which that total exceeds the person's pension RBL.
For the purposes of applying regulation 4X in determining whether a benefit paid, or commencing to be paid, to a person (in this regulation called the "current benefit" ) is within the person's reasonable benefit limits, the qualifying portion of a benefit previously received by a person is:
(a) in the case of an ETP - the amount worked out by multiplying the amount of the ETP (other than any part of the ETP that consists of undeducted contributions, concessional components, non-qualifying components or excessive components) by 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 falls and dividing the product by the index number for the quarter in which the ETP was paid; or
(b) in the case of a superannuation pension - the amount worked out by multiplying the capital value of the pension (other than any part that has been determined under paragraph 4W(1)(a) or (b) to exceed the reasonable benefit limits) by 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 falls and dividing the product by the index number for the quarter in which the commencement day of the pension falls; or
(c) in the case of an annuity - the amount worked out using the formula:
|
[ROA − (UCC + EP)] × QIN1
QIN2 |
where:
ROA
is the amount of the ETP rolled-over to purchase the annuity;
UCC
is any part of that amount that consists of undeducted contributions or concessional components;
EP
is any part of that amount that has been determined under paragraph 4W(1)(a) or (b) to exceed the reasonable benefit limits;
QIN1
is 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 occurs;
QIN2
is the index number for the quarter in which the commencement day of the annuity occurs.
Where 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, subregulation (1) applies to the previous benefit as if all of the index numbers referred to in that subregulation were 1.
4Y(3) [Benefits without qualifying portions]For the purposes of this regulation, a benefit that is referred to in subregulation 4P(1) does not have a qualifying portion.
A benefit, being an ETP paid to a person or a superannuation pension or annuity that commences to be paid to a person, is to be assessed against the pension RBL if the benefit is not, under regulation 4X, to be assessed against the lump sum RBL.
(a) the Commissioner is to calculate a person's reasonable benefit limits in relation to a benefit paid, or commencing to be paid, to the person; and
(b) paragraph 15F(1)(a) or (b) of the Act applies to the person;
the person's reasonable benefit limits are to be the greater of the person's lump sum RBL or pension RBL (whichever of those is to be applied under regulation 4X or 4Z) and:
(c) if the person was at least 50 years old on 15 February 1990 - the sum of:
(i) the aggregate of the rolled-over amounts held in approved deposit funds, life assurance companies or registered organisations on behalf of the person on that day; and
(ii) the amount of earnings that have accrued after that day on those amounts while held in those funds, companies or organisations or in:
(A) other approved deposit funds, life assurance companies or registered organisations; or
(B) superannuation funds; and
(iii) the amount of earnings on the amount referred to in subparagraph (ii); or
(d) in any other case - the aggregate of the rolled-over amounts held in approved deposit funds, life assurance companies or registered organisations on behalf of the person on that day.
For the purposes of subparagraph (1)(c)(ii), earnings are to be taken to accrue on amounts rolled-over to a superannuation fund and used to provide defined benefits at the rate of 10% annually.
4ZA(3) [Order of application of amounts in reduction]For the purposes of applying paragraph (1)(c) to a person, where:
(a) after 15 February 1990, an amount is paid out of a superannuation fund, an approved deposit fund, life assurance company or registered organisation in respect of the person; and
(b) after that day, the person rolled-over an amount to the fund, company or organisation (not being an amount that was held in another approved deposit fund, life assurance company or registered organisation on behalf of the person on that day);
the amount referred to in paragraph (a) is taken to be applied first in reduction of the amount referred to in paragraph (b), and any earnings attributable to that amount, before being applied in reduction of the amount that was held in the fund, company or organisation on that day.
If, in respect of a benefit paid before 1 July 1992:
(a) the Commissioner is to calculate a person's reasonable benefit limits in relation to a superannuation pension commencing to be paid to the person; and
(b) the pension is payable by a superannuation fund of which the person was a member on 15 August 1989; and
(c) the rules of the fund allowed, on that day, the provision of a pension for the person thecapital value of which exceeded 11.25 times any amount treated as salary of the person under those rules;
the person's reasonable benefit limits are to be the greater of the person's lump sum RBL or pension RBL (whichever of those is to be applied under regulation 4X or 4Z) and the capital value of the pension.
If, in respect of a benefit payable on or after 1 July 1992:
(a) the Commissioner is to make a determination under regulation 4W in relation to a superannuation pension that:
(i) has commenced to be paid to a person; and
(ii) is payable under rules that meet the standards of subregulation 3F(2);
(b) the pension is payable by a superannuation fund of which the person was a member on 15 August 1989;
the person's reasonable benefit limits are the greater of the person's lump sum RBL or pension RBL (whichever of those is applied under regulation 4X or 4Z) and the capital value of the pension under the governing rules of the fund as at 15 August 1989.
(Omitted by SR No 463 of 1992)
For the purposes of subsection 15Q(1) of the Act, the information concerning a determination made by the Commissioner under subsection 15K(1) or section 15L of the Act that must be provided with a copy of the determination is a written statement setting out the basis on which the determination was made.
For the purposes of subsection 7(1) of the Act, the standard in subregulation (2) is prescribed.
5AAA(2) [Prospectus requirement]Subject to subregulation (3), a person must not invite persons:
(a) to become members of a superannuation fund; or
(b) to begin making contributions to a superannuation fund in respect of new members;
unless a prospectus in relation to that fund has been registered by the Commissioner under this regulation.
5AAA(3) [Prospectus requirement not applicable]Subregulation (2) does not apply to a person, in relation to a superannuation fund, if:
(a) by reason of the operation of section 66A or 1017 of the Corporations Law, the person:
(i) was not, immediately before 22 December 1992, required under Part 7.12 of the Corporations Law to lodge a prospectus in relation to that fund; or
(ii) would not, if that fund had existed immediately before 22 December 1992, have been required under that Part to lodge a prospectus in relation to the fund; or
(b) the fund invests only in life policies issued by a life assurance company that is related to the trustee or to any of the trustees, as the case may be, of the fund, within the meaning of section 50 of the Corporations Law. 5AAA(4) [Duty of Commissioner to register]
If the Commissioner is of the opinion, in respect of a prospectus lodged for registration, that:
(a) the prospectus complies with the requirements of the applied provisions; and
(b) the prospectus does not contain any false or misleading statement; and
(c) there is no substantial omission from the prospectus;
the Commissioner must register the prospectus.
5AAA(5) [Effect of substantial compliance]If the Commissioner is of the opinion that a prospectus that does not comply with all of the requirements of the applied provisions nevertheless complies substantially with those requirements, the Commissioner may treat the prospectus as complying with all of those requirements.
5AAA(6) [Written notice]The Commissioner must, within 14 days after a prospectus is lodged for registration, give notice in writing to the person by whom it was lodged:
(a) that the prospectus has been registered; or
(b) that the prospectus has not been registered, giving the reason why the prospectus has not been registered. 5AAA(7) [Effect of lack of notice]
For the purposes of subregulation (2), a prospectus is taken to be registered on the expiry of the period referred to in subregulation (6) if the person who lodged the prospectus is not given notice under paragraph (6)(a) or (b) within that period.
5AAA(8) [Prospectus deemed registered]For the purposes of subregulation (2), a prospectus is taken to have been registered if:
(a) immediately before the date of commencement of this regulation, it was a prospectus accepted by the Commissioner as having been lodged under these Regulations as in force immediately before that date; or
(b) immediately before 22 December 1992, it was a prospectus registered under section 1020A of the Corporations Law.
In regulation 5AAA, applied provisions means:
(a) the following provisions of the Corporations Law:
(i) section 1017;
(ii) section 1020;
(iii) subsections 1021(1), (2), (3), (4), (5), (6), (6A), (7), (8), (13), (13A) and (14);
(iv) section 1022;
(v) section 1022A;
(vi) section 1024 (other than subsection (7));
(vii) section 1029;
(viii) section 1029A;
(ix) section 1030;
(x) section 1032; and
(b) any regulations made for the purposes of, or modifying or amending, any of those provisions. 5AAB(2) [Use of definitions in Corporations Law]
Subject to subregulation (3), terms used in the applied provisions that are defined in the Corporations Law have, for the purposes of the application of the applied provisions under regulation 5AAA, the same meanings as they have in the Corporations Law.
5AAB(3) [References to certain terms]In the application of the applied provisions under regulation 5AAA:
(a) a reference in the applied provisions to the Commission is taken to be a reference to the Commissioner; and
(b) a reference in the applied provisions to securities of a corporation is taken to be a reference to the interest of a member in a superannuation fund; and
(c) a reference in the applied provisions to the allotment or sale of securities of a corporation is taken to be a reference to a person becoming a member of the superannuation fund; and
(d) a reference in the applied provisions to a buyer is taken to be a reference to a person who becomes a member of the superannuation fund; and
(e) a reference in the applied provisions to registration of a registrable prospectus under section 1020A of the Corporations Law is taken to be a reference to registration of a prospectus under regulation 5AAA; and
(f) a reference, in subsections 1021(1), (2), (3), (4), (13), (13A) and (14), subsections 1024(1) to (4) inclusive and sections 1029, 1029A and 1032, to a prospectus includes, unless the context otherwise requires, a reference to a supplementary prospectus.
For the purposes of subsection 7(1) of the Act, the standard in subregulation (2) is prescribed.
5AAC(2) [Six-month limit]A person must not invite persons:
(a) to become members of a superannuation fund; or
(b) to begin making contributions to a superannuation fund in respect of new members,
on the basis of a prospectus (including a prospectus issued before the commencement of this regulation) after the end of 6 months after the issue of the prospectus.
For the purposes of subsection 7(1) of the Act, the standard in subregulation (2) is prescribed.
5AAD(2) [Notice not to invite]A person must not invite persons:
(a) to become members of a superannuation fund; or
(b) to begin making contributions to a superannuation fund in respect of new members,
on the basis of a prospectus (including a prospectus issued before the commencement of this regulation) in respect of which a notice under subregulation (3) has been served on the person and is in force.
5AAD(3) [Duty of Commissioner]If the Commissioner is of the opinion that any of the circumstances set out in subregulation (4) exist in respect of a prospectus registered under regulation 5AAA, the Commissioner may give notice in writing to a person:
(a) specifying the circumstances that in the opinion of the Commissioner exist in respect of the prospectus; and
(b) stating that subregulation (2) applies to that person in relation to the prospectus. 5AAD(4) [Grounds to issue notice]
(a) the prospectus contravenes, in a substantial respect, the requirements of the applied provisions applicable to the prospectus;
(b) the prospectus contains a false or misleading statement;
(c) there is a substantial omission from the prospectus. 5AAD(5) [Cancellation of notice]
If, while a notice is in force under this regulation, the Commissioner becomes satisfied that the circumstances that resulted in the notice being given no longer exist, the Commissioner by further notice in writing, may cancel the first-mentioned notice.
For the purposes of subsection 7(1) of the Act, the standards in subregulations (2) and (3) are prescribed.
5AA(2) [Contributions for new member]A superannuation fund must not commence accepting contributions in respect of a new member:
(a) unless the member is employed part time or full time; or
(b) unless the contributions are made:
(i) in respect of the member for the purposes of the Guarantee Act in amounts that do not exceed the minimum amounts required by that Act so that superannuation guarantee charge is not payable by the employer making the contributions; or
(ii) as payment of the shortfall component in relation to the member; or
(iii) in accordance with a prescribed agreement or award.
A superannuation fund must not accept contributions in respect of a member:
(a) if the member:
(i) has ceased for a continuous period of 2 years to be employed part time or full time; but
unless the contributions are made:
(ii) has not retired from the workforce;
(iii) in respect of the member for the purposes of the Guarantee Act in amounts that do no exceed the minimum amounts required by that Act so that superannuation guarantee charge is not payable by the employer making the contributions; or
(iv) as payment of the shortfall component in relation to the member; or
(v) in accordance with a prescribed agreement or award; or
(b) if the member has retired from the workforce.
In this regulation, "contribution" does not include a payment of the kind referred to in paragraph (b) of the definition of transferred retiree member in subsection 3(1) of the Act.
For the purposes of subsection 7(1) of the Act, the standards in subregulation (2) are prescribed.
5AB(2) [Rights to receive benefits]The rights of members of a superannuation fund and their dependants to receive benefits from the fund:
(a) must be set out in the governing rules of the fund; and
(b) must be fully secured.
For the purposes of subsection 7(1) of the Act, the standards in subregulations (2), (3) and (4) are prescribed.
5AC(2) [Members of superannuation fund]Subject to subregulations (3) and (4), benefits arising from a superannuation fund that are payable to a member:
(a) who:
(i) is gainfully employed but not employed part time or full time; or
must:
(ii) is not gainfully employed but has not retired from the workforce;
(iii) if the benefit is a pension, commence to be paid; and
at age 65 or, if contributions are accepted in accordance with these regulations in respect of the member after the member has reached age 65, at the time those contributions properly cease to be accepted;
(iv) if the benefit is a lump sum, be paid;
(b) who is employed part time may:
(i) if the benefit is a pension, commence to be paid; and
on or after age 65;
(ii) if the benefit is a lump sum, be paid;
(c) who is employed part time must:
(i) if the benefit is a pension, commence to be paid; and
at age 70;
(ii) if the benefit is a lump sum, be paid;
(d) who is employed full time may:
(i) if the benefit is a pension, commence to be paid; and
on or after age 65;
(ii) if the benefit is a lump sum, be paid;
(e) who retires from the workforce must, subject to subparagraph 11(1)(a)(ii):
(i) if the benefit is a pension, commence to be paid; and
when the member so retires.
(ii) if the benefit is a lump sum, be paid;
Benefits arising from a superannuation fund of a kind referred to in paragraph 23(ja) of the Tax Act as in force immediately before the commencement of section 7 of the Taxation Laws Amendment Act (No. 4) 1987 that are payable to a person who is on 1 July 1991 a member of the fund must:
(a) if the benefit is a pension, commence to be paid; and
(b) if the benefit is a lump sum, be paid;
when the person reaches:
(c) age 75; or
(d) an earlier retirement age, not earlier than age 55, nominated by the person in writing.
[ CCH Note: S 7 of Taxation Laws Amendment Act (No 4) 1987 commenced on 18 December 1987.]
Benefits arising from a superannuation fund of a kind referred to in section 23F of the Tax Act as in force immediately before the commencement of section 8 of the Taxation Laws Amendment Act (No. 4) 1987 that are payable to a member who reached age 65 before 1 July 1990:
(a) may:
(i) if the benefit is a pension, commence to be paid; and
(ii) if the benefit is a lump sum, be paid; and
(b) must:
(i) if the benefit is a pension, commence to be paid; and
(ii) if the benefit is a lump sum, be paid;
when the person retires from the workforce.
[ CCH Note: S 8 of Taxation Laws Amendment Act (No 4) 1987 commenced on 12 December 1987.]
For the purposes of subsection 7(1) of the Act, the standards in this regulation are prescribed in relation to the exercise of liens over prescribed benefits of a superannuation fund.
5(2) [Restrictions on trustees]A trustee of a superannuation fund must not be a party, or give effect, to the exercise of a lien over prescribed benefits by another person.
5(3) [Exception]The trustees of a superannuation fund must not exercise a lien over prescribed benefits except in respect of an identified debt owed by a member to the trustees as trustees of the fund.
5(4) [Variation of existing lien]If a person has exercised a lien over particular prescribed benefits before the commencement of this regulation otherwise than in accordance with this regulation, the person must not vary the lien except to limit its scope or to remove it.
5(5) ["prescribed benefits"]In this regulation, "prescribed benefits" , in relation to a member of a superannuation fund, means benefits that are required by the standards prescribed in this Part to be:
(a) vested in the member; or
(b) preserved by the fund. 5(6) [Reference to exercise of lien]
In this regulation, a reference to the exercise by a person of a lien over prescribed benefits of a superannuation fund includes a reference to:
(a) the making by a member of the fund of an arrangement in writing that provides for the lien to be exercised in respect of an identified debt owed by the member to the person; and
(b) the giving of notice of the intention of the person to exercise the lien in respect of an identified debt owed by a member to the person if exercise of the lien is required to protect the interests of that person; and
(c) the taking by the person of any action required for the purpose of giving effect to the lien in respect of an identified debt owed by a member to the person.
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to the vesting in or payment to members or former members of benefits arising directly or indirectly from amounts contributed to a private sector fund in operation on 30 June 1986 or a public sector fund in operation on 30 June 1990:
(a) subject to paragraph (b), in respect of any member who was a member of the fund on or after 11 June 1986 in the case of a private sector fund or 1 July 1990 in the case of a public sector fund, the following benefits, being or arising from contributions to a superannuation fund made by a member, shall vest in that member, in the case of the benefits referred to in subparagraphs (i) and (ii), on the applicable day, and in the case of the benefits referred to in subparagraphs (iii) and (iv), on the applicable day or, where the benefits accrue after that date, at the time those benefits accrue:
(i) where the amount of benefits is not based on benefits purchased under an endowment or whole of life policy - the total amount of contributions to the fund made by the member during the period commencing on the day on which the member became such a member and ending at the expiration of:
(A) 30 June 1987 in the case of a private sector fund or 30 June 1990 in the case of a public sector fund; orwhichever happens first;
(B) the day on which the member ceased to be a member;
(ii) where the amount of benefits is based on benefits purchased under an endowment or whole of life policy - the total amount of benefits arising from contributions to the fund made by the member under that policy during the period commencing on the day on which the member became such a member and ending at the expiration of:
(A) 30 June 1987 in the case of a private sector fund or 30 June 1990 in the case of a public sector fund; orwhichever happens first;
(B)the day on which the member ceased to be a member;
(iii) where the amount of benefits that are vested in the member on withdrawal from the fund is calculated on the basis of contributions made to the fund or on the basis of such contributions together with earnings based on those contributions - the net earnings of the fund arising on and after the applicable day that are allotted to the member on the basis of the amount referred to in subparagraph (i);
(iv) the total amount of member-financed benefits accruing to the member on or after the applicable day;
(b) a person who:
(i) was a member of the fund on or after 11 June 1986;
(ii) ceased to be such a member before the expiration of 30 June 1987; and
shall be paid, not later than 30 June 1988:
(iii) did not elect to preserve his or her contributions to the fund under the rules of the fund;
(iv) where the amount of benefits is not based on benefits purchased under an endowment or whole of life policy - an amount equal to the total amount of contributions to the fund made by the person during the period commencing on the day on which the person became such a member and ending at the expiration of the day on which the person ceased to be such a member; and
(v) where the amount of benefits is based on benefits purchased under an endowment or whole of life policy - the total amount of benefits arising from contributions to the fund made by the member under that policy.
A reference in subregulation (1) to contributions to a fund made by a member or by a person shall not be read as including a reference to any earnings of the fund on those contributions or to any amount:
(a) paid out of those contributions; or
(b) allocated out of those contributions to a separate account on the basis of advice provided by an actuary;
in accordance with the terms of the governing rules of the fund, by or on behalf of the member or person, as the case may be, solely for death or disability cover.
In this regulation, "the applicable day" means:
(a) in the case of a private sector fund - 1 July 1987; and
(b) in the case of a public sector fund - 1 July 1990.
For the purposes of subsection 7(1) of the Act, the following standard is prescribed in relation to the vesting in members of benefits arising directly or indirectly from amounts contributed to a private sector fund established on or after 1 July 1986 or a public sector fund established on or after 1 July 1990, namely, in respect of the total amount of member-financed benefits accruing to a member from the day on which a superannuation fund is established, the benefits shall vest in that member on the day on which the benefits accrue.
For the purposes of subsection 7(1) of the Act, a standard specified in this regulation is prescribed in relation to the vesting in members of superannuation funds of benefits arising directly or indirectly from amounts contributed to the funds.
Any benefits, other than death or disability benefits, vest in the member on the day on which the benefits accrue, if the benefits arise directly or indirectly from contributions made in respect of a member of a superannuation fund:
(a) by an employer in amounts that do not exceed the minimum amounts required by the Guarantee Act so that superannuation guarantee charge is not payable by the employer; or
(b) as payment of the shortfall component in relation to the member; or
(c) in accordance with a prescribed agreement or award.
In the case of a public sector fund, paragraph (1A)(c) applies only in respect of benefits referred to in that subregulation accruing on or after 1 July 1990 or the date of the prescribed agreement, whichever is the later.
In this regulation, "fund" means a superannuation fund:
(a) that is not a defined benefit superannuation fund; and
(b) whose benefits are not guaranteed by the Commonwealth or by a State or Territory.
For the purposes of subsection 7(1) of the Act, the standard in subregulation (3) is prescribed in relation to the vesting in members of funds benefits that arise directly or indirectly from amounts contributed to the funds.
The rate of increase of benefits vested in a member of a fund must not be such that, if the fund were to be terminated immediately after the vesting of those benefits, the assets of the fund would be insufficient to pay the minimum requisite benefit in respect of the other members of the fund.
Note:
minimum requisite benefit is defined in subregulation 3(1).
(Omitted by SR No 213 of 1993)
REGULATION 9 PRESERVATION STANDARDS 9(1) [Prescribed standards]
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to the preservation of benefits arising directly or indirectly from amounts contributed to superannuation funds:
(a) in relation to each member of a superannuation fund, the amount of any benefits vested in the member in accordance with the standard set out in regulation 8:
(i) subject to regulation 10, must be preserved if they are employer-financed benefits of a kind referred to in subregulation 8(1A) that:
(A) arise directly or indirectly from contributions of a kind referred to in paragraphs 8(1A)(a) or (b); and
(B) accrue on or after 1 July 1994; and
(ii) must be preserved if they are employer-financed benefits of a kind referred to in subregulation 8(1A) that arise directly or indirectly from contributions of a kind referred to in paragraph 8(1A)(c);
(b) in relation to each member of a superannuation fund, any amounts transferred to the fund in relation to the member under regulation 11 shall be preserved;
(c) member-financed benefits must be preserved if they arise from contributions made by a member to a superannuation fund during any period:
(i) if the fund is a private sector fund - commencing on or after 13 March 1989; or
during which the member did not have employer support in the fund.
(ii) if the fund is a public sector fund - commencing on or after 1 July 1990;
In spite of paragraph (1)(c), member-financed benefits arising from contributions during a period to a superannuation fund the employer contributions to which, for the benefit of the member, are made only under a prescribed agreement or award need not be preserved if the trustee of the fund is satisfied, by written evidence provided by or on the authority of the member, that any employer support that the member has in another fund during that period is not in an eligible scheme.
For the purposes of paragraph (1)(c) and subregulation (1A), a member has employer support in:
(a) a superannuation fund; or
(b) in an eligible scheme that is, or is part of, a superannuation fund;
during a period if the member acquires during that period an entitlement, or a potential entitlement, under the governing rules of the fund to employer-financed benefits.
In subregulation (1B), "potential entitlement" means an entitlement to benefits which vest in a member of a superannuation fund only on the occurrence of an event specified in the governing rules of the fund.
For the purposes of subsection 7(1) of the Act, the standards in subregulations (3) and (4) are prescribed.
Benefits arising from a superannuation fund:
(a) that is of a kind referred to in paragraph 23(ja) of the Tax Act as in force immediately before the commencement of section 7 of the Taxation Laws Amendment Act (No. 4) 1987; or
(b) that is of a kind referred to in section 23FB of the Tax Act as in force immediately before the commencement of section 8 of the Taxation Laws Amendment Act (No. 4) 1987;
the governing rules of which have been approved by the Commissioner or by the Commissioner of Taxation, must be preserved.
[ CCH Note: S 7 and 8 of Taxation Laws Amendment Act (No 4) 1987 commenced on 18 December 1987.]
(Omitted by SR No 213 of 1993)
[ CCH Note: For modification of reg 9 in relation to preserved benefits in regulated superannuation funds, see reg 6.02(2) and Sch 2 of the Superannuation Industry (Supervision) Regulations.]
REGULATION 10 PRESERVATION STANDARD: RELEVANT ARRANGEMENTS OR AGREEMENTS 10(1) [Standard]
For the purposes of subsection 7(1) of the Act, the following standard is prescribed in relation to the preservation of benefits arising directly or indirectly from amounts contributed to superannuation funds, namely, in relation to each member of a superannuation fund, the amount of any new employer-financed benefits, or of any improvement in employer-financed benefits (including benefits arising from improvements in vesting) vested in that member and arising from any relevant arrangement or agreement shall be preserved.
10(2) [Relevant arrangement or agreement]In this regulation, "relevant arrangement or agreement" means any arrangement or agreement made:
(a) in relation to a private sector fund - on or after 22 December 1986; or
(b) in relation to a public sector fund - on or after 1 July 1990;
other than a prescribed agreement oraward, under which new or additional employer-financed benefits under a superannuation fund are conferred on some or all members of the fund.
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to the preservation and portability of benefits arising directly or indirectly from amounts contributed to superannuation funds:
(a) in relation to each member of a superannuation fund, the benefits referred to in regulations 9, 10 and 25A that relate to the member, except to the extent to which those benefits become payable on the retirement of the member before attaining the age of 55 years in the form of a non-commutable pension or annuity payable for life, shall be preserved until:
(i) those benefits are transferred in accordance with paragraph (c);
(ii) the member has:
(A) retired from the workforce; and
(B) attained an age of not less than 55 years; or
(iii) those benefits become payable in one of the following circumstances:
(A) the retirement of the member from the workforce before attaining the age of 55 years on the ground of permanent incapacity or permanent invalidity;
(B) the death of the member;
(C) the permanent departure of the member from Australia;
(CA) because of the operation of paragraph 5AC(2)(a), (b) or (c);
(D) such other circumstances (if any) as the Commissioner approves;
(b) a member seeking payment of benefits from a superannuation fund on his or her retirement from the workforce on the ground of permanent incapacity or permanent invalidity shall be required to give to the trustees of the fund a certificate signed by 2 registered medical practitioners certifying that, in the opinion of those medical practitioners, the member is unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience;
(c) where a person who was a member of a superannuation fund withdraws from the fund, or ceases to be a member of the fund, in circumstances other than those specified in subparagraph (a)(ii) or (iii), all benefits to which a person is entitled on such withdrawal, and that are required to be preserved in relation to the person shall be:
(i) retained in the fund; or
(ii) transferred directly to, for preservation in relation to the person in:
(A) another superannuation fund nominated by the person, being a superannuation fund of which the person is, or intends to become, a member and that is required to preserve any benefits so transferred in accordance with the standards set out in this regulation;
(B) an approved deposit fund nominated by the person, being a fund that is required to preserve any benefits so transferred in accordance with the standards set out in these Regulations; or
(C) a deferred annuity nominated by the person, being a deferred annuity that cannot be surrendered or assigned before the person attains the age of 55 years and that does not pay benefits except in the circumstances specified in subparagraph (a)(ii) or (iii).
(a) nominated by a person, being an annuity to which sub-subparagraph (1)(c)(ii)(C) applies; and
(b) the benefits of which are payable not earlier than the happening of a circumstance referred to in subparagraph (1)(a)(ii) or sub-subparagraph (1)(a)(iii)(A), (B), (C) or (D);
is not, for the purposes of sub-subparagraph (1)(c)(ii)(C), a deferred annuity that can be assigned before the person attains the age of 55 years only because the value of the annuity may be commuted and transferred, with the consent of that person, before he or she attains that age, to:
(c) a superannuation fund referred to in sub-subparagraph (1)(c)(ii)(A); or
(d) an approved deposit fund referred to in sub-subparagraph (1)(c)(ii)(B); or
(e) another deferred annuity referred to in sub-subparagraph (1)(c)(ii)(C).
[ CCH Note: For modification of reg 11 in relation to preserved benefits in regulated superannuation funds, see reg 6.02(2) and Sch 2 of the Superannuation Industry (Supervision) Regulations.]
The standards set out in regulations 9, 10 and 11 do not apply in relation to the preservation of any benefits that are payable in respect of a member of a superannuation fund under the governing rules of the fund where the total amount of the benefits to which regulations 9, 10 and 11 apply is less than $500.
[ CCH Note: For modification of reg 12 in relation to preserved benefits in regulated superannuation funds, see reg 6.02(2) and Sch 2 of the Superannuation Industry (Supervision) Regulations.]
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to large funds:
(a) a board or committee of trustees of a large fund shall, subject to paragraph (e), comprise equal numbers of member representatives and employer representatives;
(b) where the governing rules of a large fund provide for the establishment or appointment of a management board, management committee or other management body, being a board, committee or body that exercises actual control over the policies of the fund, the board, committee or body shall, subject to paragraph (e), comprise equal numbers of member representatives and employer representatives;
(c) subject to paragraph (e), where:
(i) a body corporate acts as the sole trustee of a large fund under the governing rules of the fund; and
the board of the body corporate must comprise equal numbers of member representatives and employer representatives;
(ii) paragraph (b) does not apply;
(d) the governing rules of a large fund may provide for:
(i) the appointment of an independent additional trustee to a board or committee of trustees of the kind referred to in paragraph (a); or
where such an appointment is requested by the member representatives or the employer representatives who are members of the board, committee or other body;
(ii) the appointment of an independent additional member of:
(A) a board, committee or other body of the kind referred to in paragraph (b); or
(B) a board of a body corporate of the kind referred to in paragraph (c);
(e) the governing rules of a large fund may, with the written approval of the Commissioner given either generally or in relation to a particular case or a particular class of cases and subject to such conditions (if any) as are specified in the approval, provide for:
(i) the establishment of:
(A) a board or committee of trustees of the kind referred to in paragraph (a); orthat is not comprised of equal numbers of member representatives and employer representatives; or
(B) a board, committee or other body of the kind referred to in paragraph (b);
(ii) a body corporate of the kind referred to in paragraph (c) to act as the sole trustee, being a body corporate the board of which is not comprised of equal numbers of member representatives and employer representatives;
(f) where:
(i) an independent additional trustee is appointed to a board or committee of trustees of the kind referred to in paragraph (a); or
the additional trustee or member, as the case may be, shall not be entitled to a casting vote in any proceedings of the board, committee or body to which he or she is appointed;
(ii) an independent additional member is appointed to:
(A) a board, committee or other body of the kind referred to in paragraph (b); or
(B) a board of a body corporate of the kind referred to in paragraph (c);
(g) where, for any reason, a vacancy occurs in the membership of a board or committee of trustees of the kind referred to in paragraph (a), a board of a body corporate of the kind referred to in paragraph (c), or a board, committee or other body of the kind referred to in paragraph (b), a person shall be appointed to fill that vacancy within 60 days after the day on which the vacancy occurs.
In this regulation, "large fund" means:
(a) in relation to the period before 1 July 1995:
(i) a private sector fund established on or after 16 December 1985; and
having 200 or more members; and
(ii) a public sector fund established on or after 25 May 1988;
(b) in relation to the period beginning on 1 July 1995, a superannuation fund having 200 or more members.
For the purposes of subsection 7(1) of the Act, the following standard is prescribed in relation to the operation of a private sector fund or public sector fund of a kind referred to in subregulation 13(1), namely, a decision by a board or committee of trustees of the kind referred to in paragraph 13(1)(a), a board of a body corporate of the kind referred to in paragraph 13(1)(c), or a board, committee or other body of the kind referred to in paragraph 13(1)(b), shall require not less than two-thirds of the total number of the members of the board, committee or other body, as the case may be, to have voted in favour of the decision.
(Omitted by SR No 150 of 1990)
REGULATION 15 STANDARDS RELATING TO TRUSTEES: SMALL FUNDS 15(1) [Standards]
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to trustees of, the composition of boards or committees of trustees of, and certain other boards, committees or bodies relating to, each private sector fund established on or after 16 December 1985 and each public sector fund established on or after 25 May 1988, being in either case a small fund:
(a) either:
(i) the relevant standards set out in paragraphs 13(1)(a), (b), (c) and (d) shall apply to a small fund as though a reference in any of those paragraphs to a large fund were a reference to a small fund and the words "subject to paragraph (e)" in any of those paragraphs were deleted; or
(ii) a small fund shall have one or more trustees appointed following nomination by agreement between the members of the fund (or a trade union or other organisation representing the interests of those members) and the employer or employers of those members (or an organisation nominated by that employer or those employers as representing the interests of that employer or those employers);
(b) a trustee or trustees referred to in subparagraph (a)(ii) shall not be removed from office except in such circumstances, if any, as are specified in the governing rules or as were determined at the time of the nomination referred to in that subparagraph;
(c) where, for any reason, a vacancy occurs in the membership of a board or committee of trustees of a small fund, a board of a body corporate that is the sole trustee of the fund or a management board, management committee or other management body exercising actual control over the policies of the fund, a person shall be appointed to fill that vacancy within 60 days after the day on which the vacancy occurs.
Where, following a nomination referred to in subparagraph (1)(a)(ii), a body corporate is appointed as trustee of a small fund, it shall not be necessary for the board of that body corporate to comprise equal numbers of member representatives and employer representatives.
15(3) [Fund ceasing to be small fund]For the purposes of subsection 7(1) of the Act, the following standard is prescribed, namely, where a small fund ceases to be such a fund by reason of acquiring 200 or more members, the trustees of the fund shall, as soon as practicable but in any event not later than 90 days after the fund ceases to be a small fund, make such arrangements (if any) as are necessary to enable the fund to comply with the standards set out in regulations 13 and 14 and until such arrangements are made or the period of 90 days expires, whichever happens first:
(a) the fund shall not be required to comply with the standards set out in regulations 13 and 14; and
(b) the standards set out in this regulation shall continue to apply in relation to the fund. 15(4) ["Small fund"]
In this regulation, "small fund" means a superannuation fund having fewer than 200 members.
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to the investment of assets of superannuation funds and borrowing by trustees:
(a) subject to subregulation (2), money of a superannuation fund shall not be lent to any of the fund's members, either directly or by means of arrangements being entered into for lending money to the members in the exercise of a general power of investment of assets of the fund;
(b) subject to subregulation (3), the trustees of a superannuation fund shall not borrow, or maintain an existing borrowing of, money, whether by way of a secured or unsecured loan, otherwise than to secure temporary finance;
(c) all investments of any of the assets of a superannuation fund, other than an investment in an in-house asset within the meaning of regulation 16A, shall be made on an arms length basis.
If under the governing rules of a superannuation fund:
(a) in the case of a private sector fund - established before 16 December 1985; and
(b) in the case of a public sector fund - established before 25 May 1988;
the trustees of the fund, on or before 16 December 1985 in the case of a private sector fund or 25 May 1988 in the case of a public sector fund:
(c) had express power to lend money to members; or
(d) lent money to members and that lending was not expressly prohibited;
then:
(e) paragraph (1)(a) does not apply to the fund; and
(f) the power of the trustees to lend money to members must not be varied except to limit that power or to remove it.
(a) the trustees of a private sector fund had, on or before 11 June 1986; or
(b) the trustees of a public sector fund had, on or before 1 July 1990;
borrowed money in a manner that does not comply with the standard set out in paragraph (1)(b), the trustees must, as soon as practicable but in any event not later than the end of the applicable day, make such arrangements as are necessary to comply with that standard and, until such arrangements are made or the end of the applicable day, whichever happens first, that standard does not apply to the fund in respect of the money borrowed by the trustees on or before the day specified in paragraph (a) or (b), as the case requires.
In subregulation (3), "the applicable day" means:
(a) in relation to a private sector fund - 30 June 1995; or
(b) in relation to a public sector fund - 30 June 2000.
(Omitted by SR No 185 of 1990)
16(5) ["temporary finance"]
In subregulation (1), "temporary finance" means finance arranged by borrowing in order to overcome cash flow problems in the payment of superannuation benefits.
In this regulation, unless the contrary intention appears:
agreement
means any agreement, arrangement or understanding, formal or informal, express or implied, whether or not it is enforceable, or intended to be enforceable, by legal proceedings;
(a) in relation to a company - a director of the company; or
(b) in relation to a public authority constituted by or under a law of the Commonwealth or of a State or Territory - any officer of the public authority;
in-house asset
, in relation to a superannuation fund, means an asset of the fund that is a loan to, or an investment in, an employer sponsor, or an associate of an employer sponsor, of the fund, but:
(a) if:
(i) the employer sponsor is a life assurance company; and
does not include an asset that is a life policy on the life of that employee; or
(ii) the contributions made by the employer sponsor are in respect of an employee, or dependants of an employee, of the employer sponsor;
(b) if the fund is a public sector fund, does not include an investment in securities issued under the authority of:
(i) the Commonwealth or the government of a State or Territory; or
16A(2) ["Associate of employer sponsor"]
(ii) a public authority constituted by or under a law of the Commonwealth or of a State or Territory that is not an employer sponsor, or an associate of an employer sponsor, of the fund.
For the purposes of this regulation, a person is an associate of an employer sponsor of a superannuation fund other than a public sector fund if the person is an associate, within the meaning of subsection 26AAB(14) of the Tax Act, of the employer sponsor, the reference in that subsection to "taxpayer" being read as a reference to the employer sponsor.
16A(3) ["Associate of employer sponsor": public sector fund]For the purposes of this regulation, a body corporate, including a public authority constituted by or under a law of the Commonwealth or of a State or Territory, is an associate of an employer sponsor of a public sector fund:
(a) if the body corporate has a controlling interest in, or directs the operations of, the employer sponsor; or
(b) if the employer sponsor has a controlling interest in, or directs the operations of, the body corporate. 16A(4) [Cost of asset giving rise to investment income]
For the purposes of this regulation, where the investment income of a superannuation fund in a year of income is or includes income arising from an asset:
(a) the asset is taken tobe an asset of the fund; and
(b) the cost of the asset at any time during that year of income is taken to be an amount that the Commissioner is satisfied is reasonable in the circumstances. 16A(5) [Employer sponsor of fund]
For the purposes of this regulation, where a member of a superannuation fund has, or dependants of a member have, a right to receive benefits from the fund:
(a) an employer of the member; or
(b) a company in which an employer of the member has a controlling interest; or
(c) if an employer of the member is a company - a person who is connected with that company;
who contributes to the fund in respect of the member or his or her dependants is an employer sponsor of the fund.
16A(6) [Person connected with employer sponsor company]For the purposes of paragraph (5)(c), a person is connected with a company that is an employer of a member only if:
(a) the person has a controlling interest in the employer; or
(b) the person is a company in which a controlling interest is held by a person who also has a controlling interest in the employer; or
(c) the person is a beneficial owner of shares in the employer. 16A(7) [Cost of asset: Commissioner's discretion]
For the purposes of this regulation, where:
(a) an asset of a superannuation fund was acquired:
(i) without consideration; or
(ii) for a consideration other than the value of the asset when it was acquired; or
(b) the whole or a part of the consideration for which an asset of a superannuation fund was acquired was not money;
the cost of the asset is the amount that the Commissioner is satisfied is reasonable in the circumstances.
16A(8) [Indirect loan to employer sponsor or associate]For the purposes of this regulation, where:
(a) but for this subregulation, an asset of a superannuation fund would be taken to be a loan, or investment, other than an in-house asset; and
(b) that loan or investment was made as the result of entering into or carrying out an agreement; and
(c) any of the persons who entered into or carried out the agreement did so for the purpose, or for purposes that included the purpose, of achieving the result that a loan or investment would be made to or in, or to or in an associate of, an employer sponsor of the fund;
the asset is an in-house asset of the fund.
16A(9) [Loan to person with financial link with employer sponsor]For the purposes of this regulation, where:
(a) an asset of a superannuation fund is a loan to, or investment in, a person other than:
(i) an employer sponsor of the fund; or
(ii) an associate of an employer sponsor of the fund; and
(b) the person has a financial link with an employer sponsor of the fund or an associate of an employer sponsor of the fund; and
(c) subregulation (8) does not apply in relation to the asset;
the cost of the in-house assets of the fund is to be increased to an amount that the Commissioner is satisfied is a reasonable cost for the asset.
16A(10) ["Financial link with"]For the purposes of subregulation (9) and this subregulation, a person has a financial link with a second person:
(a) if an asset of the first-mentioned person is a loan to, or an investment in, the second person; or
(b) if the first person has a financial link with a third person who has a financial link with the second person (including a financial link with the second person by another application or other applications of this paragraph). 16A(11) [Cost increased by mortgages, guarantees and share call payments]
For the purposes of this regulation and subject to subregulation (12), the cost of the in-house assets of a superannuation fund is taken to be increased by an amount equal to the sum of:
(a) the amount of any subsisting guarantee given by the trustee of the fund (whether jointly or otherwise) in relation to, or in relation to an associate of, an employer sponsor of the fund; and
(b) the amount of any subsisting mortgage given in respect of an asset of the fund for the benefit of, or for the benefit of an associate of, an employer sponsor of the fund (whether or not the mortgage was also given for the benefit of other persons); and
(c) the amount of payments by way of calls in respect of shares in, or in an associate of, an employer sponsor of the fund, that the trustee of the fund is, or could become, liable to pay (whether jointly or otherwise). 16A(12) [Cost of unpaid share calls]
For the purposes of paragraph (11)(c), where:
(a) the trustee of a superannuation fund could become liable (whether jointly or otherwise) to pay an amount by way of calls in respect of shares in, or in an associate of, an employer sponsor of the fund; and
(b) the Commissioner is satisfied that the assets of the employer sponsor or the associate of the employer sponsor, as the case may be, are sufficient to enable it to pay any debts that it has incurred, or is reasonably likely to incur, without requiring any of those calls to be paid;
the Commissioner may determine that the amount referred to in paragraph (a) must be disregarded.
16A(13) [Loans to employees owning shares in employer company]For the purposes of this regulation, where:
(a) an employer of a member is a company; and
(b) the member has, or dependants of the member have, a right to receive benefits from a superannuation fund; and
(c) the member, or a dependant of the member, is a beneficial owner of shares in the employer; and
(d) an asset of the fund is a loan to the member, or the dependant, referred to in paragraph (c); and
(e) but for this subregulation, the asset would be taken to be an in-house asset of the fund;
the asset is not taken as an in-house asset of the fund if the Commissioner, having regard to:
(f) the amount of the loan; and
(g) the value of the shares; and
(h) any other matters that the Commissioner considers relevant;
is satisfied that it would be reasonable to treat the asset as not being an in-house asset.
16A(14) [Cost of in-house assets]For the purposes of sub-subparagraph (17)(b)(i)(A), where as at 11 March 1985 the total cost of the in-house assets of a superannuation fund other than a public sector fund exceeded 70% of the cost of all the assets of the fund, the cost of the in-house assets of the fund as at 11 March 1985 is taken to be equal to 70% of the cost of all the assets of the fund as at 11 March 1985.
16A(15) [Acts contravening other provisions]Nothing in this regulation permits the doing of an act or thing by, or in relation to, a superannuation fund that could not be so done without contravening another provision of these Regulations that applies to the fund.
16A(16) [Fund in existence during part year]Where a superannuation fund is in existence during part only of a year of income, this regulation has effect as if a reference to a time during the year of income were a reference to a time during the part of that year of income in which the superannuation fund was in existence.
16A(17) [Prescribed investment standards]For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to the investment of the assets of superannuation funds other than public sector funds:
(a) the cost of the in-house assets of a fund established after 11 March 1985 is not to exceed at any time during a year of income 10% of the cost of all the assets of the fund;
(b) the cost of the in-house assets of a fund established before 12 March 1985 is not to exceed at any time during a year of income:
(i) in a year of income commencing on 1 July 1990, 1991, 1992, 1993 or 1994:
(A) the cost of the in-house assets of the fund as at 11 March 1985; orwhichever is the greater; and
(B) 10% of the cost of all the assets of the fund;
16A(18) [Prescribed investment standards - public sector funds]
(ii) in any other later year of income - 10% of the cost of all the assets of the fund.
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to the investment of the assets of public sector funds:
(a) the cost of the in-house assets of a fund established on or after 1 July 1990 is not to exceed at any time during a year of income 10% of the cost of all the assets of the fund;
(b) the cost of the in-house assets of a public sector fund established before 1 July 1990 is not to exceed at any time during a year of income:
(i) in a year of income commencing on 1 July 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998 or 1999:
(A) the cost of the in-house assets of the fund as at 1 July 1990; orwhichever is the greater; and
(B) 10% of the cost of all the assets of the fund;
(ii) in any other later year of income - 10% of the cost of all the assets of the fund.
For the purposes of subsection 7(1) of the Act, the standard in subregulation (2) is prescribed in relation to the investment of the assets of a superannuation fund.
16B(2) [Restriction on investment in new in-house assets]Investment of the assets of a fund in an in-house asset must not be made if:
(a) the market value of in-house assets of the fund already exceeds 5% of the market value of all assets of the fund; or
(b) in consequence of the investment, the market value of in-house assets of the fund would exceed 5% of the market value of all assets of the fund.
For the purposes of subsection 7(1) of the Act, the following standards are prescribed in relation to the financial and actuarial reports to be prepared in relation to superannuation funds and the reduction of benefits of members of superannuation funds:
(a) in relation to a defined benefit superannuation fund, an actuarial investigation shall be made:
(i) in the case of a private sector fund in operation on 22 December 1987 into which an actuarial investigation has been made within the immediately preceding 2 years - as at a date within the period of 3 years beginning on the day on which the last actuarial investigation was so made; and
(ii) in the case of a private sector fund in operation on 22 December 1987 to which subparagraph (i) does not apply - as at a date not later than:
(A) 3 years after the day on which the fund began to operate; orwhichever is the later; and
(B) 1 January 1989;
(iii) in the case of a public sector fund in operation on 1 July 1990 into which an actuarial investigation has been made within the immediately preceding 2 years - as at a date within the period of 3 years beginning on the day on which the last actuarial investigation was so made; and
(iv) in the case of a public sector fund in operation on 1 July 1990 to which subparagraph (iii) does not apply - as at a date not later than:
(A) 3 years after the day on which the fund began to operate; orwhichever is the later; and
(B) 1 July 1991;
and thereafter regular actuarial investigations shall be made, each of them being as at a date not later than 3 years after the previous date as at which an actuarial investigation was made;
(v) in any other case - as at a date within the period of 3 years beginning on the day on which the fund began to operate;
(b) in relation to a defined benefit superannuation fund, an actuarial report shall be required to be given to the trustee or trustees of the fund, in relation to each investigation referred to in paragraph (a), within the period of 12 months commencing on the day following the day as at which each such investigation is made or within such extended period as the Commissioner allows, being a report containing:
(i) in relation to a private sector fund or a fully funded public sector fund - the matters specified in subregulation (2); or
(ii) in relation to a public sector fund (other than a fully funded public sector fund) - the matters specified in subregulation (3);
(c) an audit of the accounts and records of a superannuation fund shall be required to be carried out, after the end of each year of income of the fund but not later than the day by which the return referred to in subsection 12(1) of the Act is to be given to the Commissioner, by an approved auditor and an auditor's report shall be required to be given to the trustee or trustees of the fund in respect of each such audit;
(d) in relation to the benefits that may be provided by a superannuation fund:
(i) the governing rules must not be amended in a way that would have the effect of:
(A) reducing the amount of a benefit, calculated on the basis of contributions to the fund and earnings on those contributions, that has accrued, or become payable, to a member before the amendment; or
(B) reducing the amount of a benefit, other than a benefit referred to in sub-subparagraph (A), that is, or may become, payable to a member in relation to a period before the amendment; and
unless:
(ii) the benefits that have accrued, or become payable, to a member of a fund must not otherwise be reduced;
(iii) the reduction is required because of, and does not exceed the value of, any tax payable on fund income; or
(iv) the reduction is required only to enable the fund to comply with standards prescribed by these Regulations; or
(v) the member approves in writing of the reduction; or
(vi) the Commissioner approves in writing of the reduction;
(e)-(i) (Omitted by SR No 224 of 1992)
A report referred to in paragraph (1)(b) in relation to a private sector fund or a fully funded public sector fund shall contain, in addition to any other matter:
(a) a statement of the value of the assets of the superannuation fund at the date of the latest valuation;
(b) a statement of the actuary's opinion on whether the value of the assets of the fund at the date of the latest valuation is adequate to meet the liabilities of the fund in respect of vested benefits in the fund;
(c) a statement recommending, in respect of the 3-year period immediately following the period to which the report relates, the rate at which the actuary considers employer-contributions should be made or, where the actuary considers employer-contributions should be made at different rates in respect of 2 or more periods within that first-mentioned period, such different rates; and
(d) a statement whether the sum of:
(i) all liabilities of the fund during that 3-year period that can reasonably be anticipated; and
can reasonably be met from the sum of:
(ii) all benefits of the fund that can reasonably be anticipated to vest at the end of that 3-year period in the persons who are members of the fund on the day as at which the actuarial investigation is made;
(iii) the value of the assets of the fund at the date of the latest valuation; and
(iv) the assumed member contributions during that 3-year period; and
(v) the assumed employer contributions during that 3-year period calculated at the rate or rates referred to in paragraph (c); and
(vi) the earnings of the fund assumed by the actuary with respect to that 3-year period; and
(e) a statement as to whether or not an event that is a prescribed event for the purposes of paragraph 15D(4)(a) of the Act occurred in the period to which the report applies.
A report referred to in paragraph (1)(b) in relation to a public sector fund (other than a fully funded fund) must contain, in addition to any other matter:
(a) a statement of the value of the assets of the fund;
(b) a statement of any liability for benefit payments not expected to be covered by:
(i) the assets of the fund; or
(ii) any future contributions to, or earnings of, the fund; or
(iii) a guarantee by the government or other body that established the fund; or
(iv) an appropriation in respect of the fund.
(Omitted by SR No 224 of 1992)
17(5)
(Omitted by SR No 224 of 1992)
REGULATION 17A 17A STANDARDS - MEMBERS OF SUPERANNUATION FUND CEASING TO BE ENTITLED TO BENEFITS
For the purposes of subsection 7(1) of the Act, the following standards are prescribed where the right of a member of a fund or of the dependants of a member to receive benefits from the fund ceases during a year of income:
(a) if, at the time of the cessation of the right, a specific part of the amount of the fund was appropriated for the provision of benefits for the member or his or her dependants - the amount of those benefits must be applied in the year of income, or in the period of 6 months after the year of income, for:
(i) the provision of the benefits that other members or their dependants have rights to receive from the fund; or
(ii) the provision for other members or their dependants who have rights to receive benefits from the fund of additional benefits on a basis that the Commissioner is satisfied is reasonable having regard to all the circumstances; or
(iii) any other purpose approved in writing by the Commissioner;
(b) if, at the time of the cessation of the right, a specific part of the amount of the fund was not appropriated for the provision of benefits for the member or his or her dependants - any additional benefits that have been, or are to be, provided from the fund for other members of the fund or their dependants because of the cessation of the right must have been, or must be, provided on a basis that the Commissioner is satisfied is reasonable having regard to all the circumstances.
For the purposes of subsection 7(1) of the Act, the standards in subregulations (2), (3) and (4) are prescribed.
18(2) [Time for inclusion of standards]Where a requirement of a standard prescribed under the Act, other than by this regulation or regulation 5, and having effect on 1 January 1990 is applicable to the operation of a superannuation fund, the governing rules of the fund must, on and after:
(a) the day on which the return for the fund for the purposes of section 12 of the Act for the year of income that ends on 30 June 1990 is given to the Commissioner; or
(b) 15 December 1990;
whichever is the earlier:
(c) include the requirement; or
(d) include a provision that has the effect that the requirement, as in force from time to time, is taken to be included in the governing rules. 18(3) [Standards not included by required time]
(a) a requirement referred to in subregulation (2) is applicable to the operation of a superannuation fund established on or before 30 June 1990; and
(b) the governing rules of the fund do not, on 30 June 1990:
(i) include the requirement; or
(ii) include a provision that has the effect that the requirement, as in force from time to time, is taken to be included in the governing rules;
the trustees of the fund must:
(c) have made before 30 June 1990 arrangements in writing for the governing rules of the fund to be amended to:
(i) include the requirement referred to in paragraph (a); or
(ii) include the provision referred to in subparagraph (b)(ii); and
(d) if required to do so by the Commissioner by notice in writing, produce to the Commissioner, within a period of not less than 14 days specified in the notice, documentary evidence that satisfies the Commissioner that the trustees have so made those arrangements. 18(4) [Time for inclusion of standards gazetted after 1/1/90]
Where a regulation prescribed under the Act, other than by this regulation or regulation 5, and notified in the Gazette after 1 January 1990:
(a) amends a standard in a manner that affects a requirement applicable to the operation of a superannuation fund; or
(b) prescribes a standard containing a requirement applicable to the operation of a superannuation fund;
the governing rules of the fund must, on and after 30 June in the second calendar year after the calendar year in which:
(c) the amendment referred to in paragraph (a); or
(d) the requirement referred to in paragraph (b);
commences, or is notified in the Gazette, whichever is the later:
(e) include the amendment referred to in paragraph (a) or the requirement referred to in paragraph (b), as the case may be; or
(f) include a provision that has the effect:
(i) that the amendment referred to in paragraph (a) is taken to be included in the governing rules; or
(ii) that the requirement referred to in paragraph (b), as in force from time to time, is taken to be included in the governing rules.
For the purposes of subsection 7(1) of the Act, a superannuation fund must not, without the approval in writing of the Commissioner, use a factor for converting a superannuation pension payable to a person, being a pension that does not meet the pension and annuity standards, to a lump sum that is greater than the pension valuation factor that would be applicable to the pension under Schedule 3 if the commencement day of the pension were the day on which it is commuted.
For the purposes of subsection 7(1) of the Act, the standards set out in this regulation are prescribed.
A superannuation fund must not accept deductible contributions during a year of income that exceed the maximum deductible contributions applicable to the fund under this regulation in relation to that year of income.
18B(3) [Age limit]A superannuation fund must not accept a contribution towards a superannuation pension or an ETP for a person, unless:
(a) the person:
(i) has not turned 65; or
(ii) if the governing rules of the fund as at 30 June 1990 provide that the person must retire for the purposes of the fund not later than 12 months after the person turns 65 - has not reached the age at which he or she must retire for those purposes; or
(iii) turned 60 on or before 30 June 1990 and has not turned 70; or
(b) the contribution is made:
(iii) in respect of the member for the purposes of the Guarantee Act in an amount that does not exceed the minimum amount required by that Act so that superannuation guarantee charge is not payable by the employer making the contribution; or
(iv) as payment of the shortfall component in relation to the member; or
(v) in accordance with a prescribed agreement or award.
Subject to subregulation (4A), subregulation (6) has effect in relation to a person who was at least:
(a) 60 years old on 1 July 1990; and
(b) 65 years old at the time referred to in that subregulation;
as if references in that subregulation to the age of 65 years were references to the age of 70 years.
If, in accordance with guidelines issued by the Commissioner that were current as at:
(a) 25 May 1988; or
(b) the day when the fund was constituted (if the fund was constituted after 25 May 1988 and before 1 July 1990);
the acceptance of contributions in relation to persons on the basis of a retirement age of less than 65 years was permitted, subregulation (6) has effect until 30 June 1995 in relation to the person as if references in that subregulation to the age of 65 years were references to the lower age so permitted.
For the purposes of this regulation:
(a) if the rules of a superannuation fund do not prohibit the fund providing pensions or rolling-over amounts to purchase annuities on behalf of members, the reasonable benefit limit of a member of the fund is whichever of the following amounts the fund chooses:
(i) the amount worked out by multiplying the person's HAS by the person's pension reasonable benefit multiple using an eligible service period ending:
(A) in a case to which subregulation (4A) applies - at the end of the day on when the person turns the lower age referred to in that paragraph; or
(B) in any other case - at the end of the day when the person turns 65; or
(ii) the amount specified in paragraph (b) of the definition of pension RBL in subregulation 4A(1); or
(iii) the amount worked out by multiplying 90% of the person's salary as last advised to the trustees of the fund by an employer of the person of whom the person is not an associate by the number that would be the person's pension reasonable benefit multiple, if it were worked out using:
(A) in a case to which subregulation (4A) applies - an eligible service period ending at the end of the day when the person turns the lower age referred to in that subregulation; orand as if the person's HAS were 90% of that salary; and
(B) in any other case - an eligible service period ending at the end of the day when the person turns 65;
(b) if the rules of a superannuation fund prohibit the provision of pensions and the rolling-over of amounts to purchase annuities on behalf of members, the reasonable benefit limit of a member of the fund is whichever of the following amounts the fund chooses:
(i) the amount worked out by multiplying the person's HAS by the person's lump sum reasonable benefit multiple using an eligible service period ending:
(A) in a case to which subregulation (4A) applies - at the end of the day when the person turns the lower age referred to in that subregulation; or
(B) in any other case - at the end of the day when the person turns 65; or
(ii) the amount specified in subparagraph (a)(ii) of the definition of lump sum RBL in subregulation 4A(1); or
(iii) the amount worked out by multiplying 90% of the person's salary as last advised by an employer of the person of whom the person is not an associate, by the number that would be the person's lump sum reasonable benefit multiple if it were worked out using:
(A) in a case to which subregulation (4A) applies - an eligible service period ending at the end of the day when the person turns the lower age referred to in that subregulation; orand as if the person's HAS were 90% of that salary.
(B) in any other case - an eligible service period ending at the end of the day on when the person turns 65;
For the purposes of this regulation, the maximum funding limit of a person, other than a person referred to in subregulation (6A) at a particular time isto be worked out using the formula:
|
RBL × (AGE + 5 − ENTRY AGE)
(65 − ENTRY AGE) |
where:
RBL
means the person's reasonable benefit limit at that time worked out in accordance with subregulation (5); and
(a) 60, or the person's age in days at that time or on the day on which the person joined the fund, whichever is the later, divided by 365, whichever is the lower; or
(b) if paragraph (4)(a) applies to the person - 65, or the person's age in days at his or her last birthday divided by 365, whichever is the lower; or
(c) if subregulation (4A) applies to the person:
(i) 5 less than the lower age in years referred to in that subregulation; or
whichever is the lower; and
(ii) the person's age in days at that time or on the day when the person joined the fund, whichever is the later, divided by 365;
ENTRY AGE
means the number obtained by dividing:
(a) the person's age in days at the time when the person joined the fund; or
(b) if the person rolled-over into the fund the whole of a benefit (other than undeducted contributions, concessional components or non-qualifying components) from another superannuation fund or from an approved deposit fund, a life assurance company or a registered organisation - the person's age in days at the time when the person joined the fund, company or organisation from which the person first rolled-over the whole of a benefit (other than undeducted contributions, concessional components or non-qualifying components);
by 365.
For the purposes of this regulation, the maximum funding limit of a person who has commenced to receive a superannuation pension from a superannuation fund is 0.
The maximum deductible contributions that may be accepted by a defined benefit superannuation fund in respect of all members of the fund is:
(a) for the period from the beginning of 1 July 1990 to the end of the year of income of the fund when the first calculation day on or after 1 July 1990 occurs - the amount worked out in accordance with the rate determined by an actuary as at the last calculation date before 1 July 1990; and
(b) for a particular year of income in each period of 3 years of income of the fund the first of which commences immediately after the year of income referred to in paragraph (a) - the amount worked out in accordance with subregulation (7A) in respect of the year.
The amount referred to in paragraph (7)(a) or (b) is an amount worked out in accordance with the formula:
| R × S |
where:
R
is the actuarial rate worked out using the formula in subregulation (8);
(a) the sum of the salary amounts of all members of the fund as at the beginning of that year; and
(b) the sum of the salary amounts of each person who became a member of the fund between the beginning and the end of that year, as at the day when the person became a member.
The actuarial rate for the purposes of subregulation (7) is the rate worked out by dividing the number worked out by an actuary using the formula:
|
MFL − AMV + B + C − E − G
N × 0.85 |
+ D + F |
by the number of dollars in the sum of the salary amounts of all members of the fund as at the calculation day,
where:
MFL
means the sum of each member's maximum funding limits as at the calculation day; and
(a) the amount of any cash or deposits at call that the fund holds on behalf of members of the fund; and
(b) the face value of any capital guaranteed life insurance policies that the fund holds; and
(c) the cost or the surrender value, whichever is the greater, of any other life policies that the fund holds, not being policies that are in the form of units:
(i) to which value is added at rates that:
(A) are determined by the insurers concerned from time to time; and
(B) are used to fix unit prices; or
(ii) the value of which is directly related to the value of assets specified in the respective policies; and
(d) 85% of the market value of the other assets of the fund;
as at the calculation day; and
B
means the amount determined by an actuary that represents the sum of the present values of the amounts required to be paid by the fund in respect of:
(a) postponed retirements; and
(b) deferred benefits for former members or dependants of former members; and
(c) pensions payable to existing members, dependants of existing members or dependants of former members;
as at the calculation day; and
C
means the total amounts of undeducted contributions and concessional components held by the fund as at the calculation day; and
D
means the amount that represents the total of:
(a) the sum of:
(i) the expected cost to the fund during the year of income, from the beginning of the calculation day, of insurance premiums in respect of death or permanent disability benefits; and
to cover the difference between the sum of the reasonable benefit limits of all members of the fund, as at the calculation day, and AMV in the formula; and
(ii) the amount determined by an actuary as the cost to the fund during that year of meeting the liability referred to in paragraph 279(2)(b) of the Tax Act (in this definition called "self insurance" );
(b) the sum of:
(i) the expected cost to the fund during that year of insurance premiums; and
to cover the payment of salary continuance benefits to which component G in the formula does not apply; and
(ii) the amount determined by an actuary as the cost to the fund during that year of self insurance;
E
means the total amount of benefits that have, after 30 June 1990 and before the calculation day, been transferred by the fund to other superannuation funds on behalf of persons who are members of the fund as at the calculation day; and
F
means the expected cost of administration of the fund during the period of 12 months commencing on the calculation day; and
G
means the sum of the amounts of any salary continuance benefits that have, after 30 June 1990 and before the calculation day, been paid by the fund in respect of persons who were members of the fund as at the calculation day, being benefits that:
(a) are greater than 75% of the salaries to which they relate; or
(b) had been payable for more than 2 years; and
N
means the number worked out by dividing the sum of the period to retirement of each member of the fund as at the calculation day by the number of members of the fund.
The maximum deductible contributions that may beaccepted by a superannuation fund that is not a defined benefit superannuation fund during a year of income (in this subregulation called the "current year of income" ) in relation to a member of the fund is the amount worked out using the formula:
|
MFL − AMV + B + C − E − G
N × 0.85 |
+ D + F |
where:
MFL
means the member's maximum funding limit as at the beginning of the current year of income; and
AMV
means the amount worked out by multiplying the sum of:
(a) the amount of any cash or deposits at call that the fund holds on behalf of members of the fund; and
(b) the face value of any capital guaranteed life insurance policies that the fund holds; and
(c) the cost or the surrender value, whichever is the greater, of any other life policies that the fund holds, not being policies that are in the form of units:
(i) to which value is added at rates that:
(A) are determined by the insurers concerned from time to time; and
(B) are used to fix unit prices; or
(ii) the value of which is directly related to the value of assets specified in the respective policies; and
(d) 85% of the market value of the other assets of the fund;
as at the beginning of the current year of income by the member's pro rata factor for the current year of income; and
B
means the amount worked out by multiplying the sum of the present values of the amounts required to be paid by the fund in respect of:
(a) postponed retirements; and
(b) deferred benefits for former members or dependants of former members; and
(c) pensions payable to existing members, dependants of existing members or dependants of former members;
by the member's pro rata factor for the current year of income; and
C
means the amount of undeducted contributions and concessional components held by the fund in respect of the member at the beginning of the current year of income; and
D
means the amount that represents the total of:
(a) the sum of:
(i) the expected cost to the fund during the current year of income of insurance premiums in respect of death or permanent disability benefits; and
to cover the difference between the member's reasonable benefit limits and the member's account balance as at the beginning of the year of income; and
(ii) the cost to the fund during that year of meeting the liability referred to in paragraph 279(2)(b) of the Tax Act (in this definition called "self insurance" );
(b) the sum of:
(i) the expected cost to the fund during the current year of income of insurance premiums; and
to cover the payment to the member of salary continuance benefits to which component G in the formula does not apply; and
(ii) the cost to the fund during that year of self insurance;
E
means the amount of benefits that have, after 30 June 1990 and before the current year of income, been transferred by the fund to other superannuation funds on behalf of the member; and
(a) if the fund allocates a cost to the member in respect of the expected cost of administration of the fund during the current year of income - the amount so allocated; or
(b) in any other case - the amount worked out by multiplying the expected cost of administration of the fund during the current year of income by the member's pro rata factor for the current year of income; and
G
means the sum of the values of any salary continuance benefits paid by the fund after 30 June 1990 and before the current year of income in respect of the member that:
(a) are greater than 75% of the salary to which they relate; or
(b) had been payable for more than 2 years; and
N
means the period to retirement of the member at the beginning of the current year of income.
Subregulation (9) applies to a member of a superannuation fund who joined the fund after the beginning of a year of income as if references in that subregulation to the beginning of the current year of income were references to the day on which the member joined the fund.
18B(11) [Reduction for in-house assets]If a superannuation fund has in-house assets at any time during a year of income, the amount worked out under subregulation (8) or (9) in relation to the fund for that year of income is to be reduced by the percentage worked out in accordance with the following table:
| Peak level of in-house assets | Reduction |
| up to 10% | 0% |
| 10% to 20% | 10% |
| 20% to 30% | 20% |
| 30% to 40% | 30% |
| 40% to 50% | 40% |
| 50% to 60% | 50% |
| 60% to 70% | 60% |
| 70% to 80% | 70% |
| 80% to 90% | 80% |
| over 90% | 90% |
If an application of the formula in subregulation (8) in relation to a superannuation fund produces zero or a negative number in relation to a year in an actuarial period, the fund must not accept deductible contributions during that year.
18B(13) [No contributions to be accepted: other funds]If an application of the formula in subregulation (9) in relation to a superannuation fund produces zero or a negative amount in relation to a year of income in relation to a member of the fund, the fund must not accept deductible contributions during that year in relation to that member.
18B(14) [Interpretation]In this regulation:
account balance
, in relation to a member of a superannuation fund, means amounts allocated to the member under the rules of the fund, and includes amounts that have not vested in the member;
actuarial period
, in relation to a defined benefit superannuation fund, means a period, not exceeding 3 years, commencing at the beginning of a year of income of the fund;
calculation day
, in relation to a defined benefit superannuation fund, means the first day of an actuarial period of the fund;
deductible contributions
means contributions towards a benefit that are deductible for tax purposes under section 82AAC or 82AAT of the Tax Act;
HAS
has the same meaning as in subregulation 4A(1);
in-house asset
has the same meaning as in subregulation 16A(1);
period to retirement
, in relation to a member of a superannuation fund, means:
(a) 5 or the number worked out by dividing by 365:
(i) in a case to which subregulation (4) or (4A) applies - the number of days before the member reaches the age applicable to him or her under that subregulation; or
whichever is the lower number; or
(ii) in any other case - the number of days before the member turns 65;
(b) if the number ascertained in accordance with paragraph (a) is less than 1, 1.
pro rata factor
, in relation to a member of a superannuation fund in relation to a year of income, means the number worked out by dividing the member's account balance at the beginning of the year of income or, if the member joined the fund after that time, at the time the member joined, by the sum of the account balances of all members of the fund at the beginning of the year of income;
salary amount
, in relation to a member of a superannuation fund, means the amount of the salary of the member for the purposes of the governing rules of the fund;
salary continuance benefit
means an income benefit payable by a superannuation fund because of the disability of a member of the fund, being a benefit that:
(a) is not a superannuation pension; and
(b) is not payable on or after the day when the member turns 65.
For the purposes of subsection 7(1) of the Act, the standard in subregulation (2) is prescribed.
18BA(2) [Prohibition re financial assistance]A superannuation fund must not give any financial assistance (other than lending) using resources of the fund to:
(a) a member of the fund; or
(b) a relative of a member of the fund. 18BA(3) ["relative"]
In this regulation:
relative
has the same meaning as in the Income Tax Assessment Act 1936.
For the purposes of subsection 7(1) of the Act, the standards in subregulations (2) and (3) are prescribed.
18BB(2) [Prohibition re acquisition of assets]Subject to subregulation (2A), the trustees of a superannuation fund must not intentionally acquire an asset from:
(a) a member of the fund; or
(b) a relative of a member of the fund.
Exception - acquisitions of business real property and listed security
18BB(2A) [Acquisition of assets from member or relative of fund]
Subregulation (2) does not prohibit a trustee from acquiring an asset from a member of the fund or a relative of a member of the fund if:
(a) the asset is business real property of the member or relative, or a listed security; and
(b) the asset is acquired at market value; and
(c) where the asset is business real property - after the acquisition of the business real property, that property, together with any other business real property previously acquired from a member of the fund or a relative of a member since 30 November 1993, would represent not more than the acceptable percentage of the total value of the assets of the fund.
If a person has entered into, commenced to carry out or carried out a scheme or any part of a scheme with the intention that:
(a) the scheme would result, or be likely to result, in the acquisition of an asset by a superannuation fund, where the asset is acquired from a person who has a connection (either direct, or indirect through 1 or more interposed companies, partnerships or trusts) with:
(i) a member of the fund; or
(ii) a relative of a member of the fund; and
(b) that acquisition would avoid the application of subregulation (2) to the fund;
the trustees of the fund must not intentionally:
(c) make that acquisition; or
(d) do any act towards, or for the purpose of making, that acquisition. 18BB(4) [Definitions]
In this regulation:
(a) for an excluded superannuation fund - 40%; and
(b) otherwise - 0%;
acquire an asset
does not include accept money;
business
includes any profession, trade, employment, vocation or calling carried on for the purposes of profit, including:
(a) the carrying on of primary production; and
(b) the provision of professional services;
but does not include occupation as an employee;
business real property
of a person means any freehold or leasehold interest in real property which is used wholly and exclusively in the person's business;
excluded superannuation fund
means a superannuation fund of which there are fewer than 5 members;
(a) a share; or
(b) a unit; or
(c) a bond or debenture; or
(d) a right or option; or
(e) any other security;
listed for quotation in the official list of a stock exchange in Australia;
relative
has the same meaning as in the Income Tax Assessment Act 1936;
(a) any agreement, arrangement, understanding, promise or undertaking:
(i) whether express or implied; or
(ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
In this Division, unless the contrary intention appears:
body
means an unincorporated body;
business hours
, in relation to a place, means the period from 9.00 a.m. to 5.00 p.m. on a day other than a Saturday, a Sunday or a day that is a public holiday in that place;
multi-member fund
means a superannuation fund:
(a) that, in relation to a reporting period or year of income of the fund, had more than 4 members at the beginning of that period or year; and
(b)from which the benefits payable to members are not wholly defined by reference to life policies;
reporting period
, in relation to a superannuation fund, means a period of not more than 12 months that begins:
(a) in the case of a fund established before 1 July 1993 - in the period from the beginning of 1 July 1992 to the end of 30 June 1993; and
(b) in any other case - on or after 1 July 1993;
sub-plan
, in relation to a member or members of a superannuation fund, means the operations of that fund relating to the contributions to the fund in respect of that member or those members, but not of all other members, of the fund.
A reference in this Division to a superannuation fund in relation to a member, or members, of the fund includes a reference to a sub-plan relating to the member or members.
18C(3) [Report to a member]A reference in this Division to a report to a member of a superannuation fund in respect of a reporting period of the fund is a reference to a report in respect of the reporting period that applies to the member.
18C(4) [Person or body having authority to manage]A reference in this Division to a person or body having authority to manage, or participate in the management of, a superannuation fund is a reference to a person or body having authority to direct:
(a) the operations of the fund; or
(b) a person or body having authority of the kind referred to in paragraph (a).
For the purposes of subsection 7(1) of the Act, the standards set out in this Division are prescribed.
18D(2) [Reporting period]A reporting period of a superannuation fund must not begin after the end of the preceding reporting period of the fund.
18D(3) [Record-keeping requirement]The trustees of a superannuation fund must keep and retain records of the operations of the fund by reference to each reporting period to which a report that the trustees are required to prepare under this Division relates.
Subject to subregulation (4), the provisions of this regulation apply only during the period that commences on 1 July 1992 and ends at the end of 31 December 1992.
18DA(2) [Compliance with disclosure requirements to prospective members]If a fund does not satisfy a standard prescribed by paragraph 18E(2)(b), 18E(3)(d) or 18E(3)(f) in relation to a prospective member before the date on which he or she becomes a member, the fund is taken to have satisfied the standard if the fund performs the action specified in the standard at the earliest practicable time after that date.
18DA(3) [Modifications to disclosure requirements]In the application of subregulation (2) to those standards, the following modifications apply:
(a) paragraphs 18E(2)(b), 18E(3)(d) and 18E(3)(f) have effect with the omission of "a prospective member" and the substitution of "a member"; and
(b) subparagraph 18E(2)(b)(i) has effect with the omission of "the prospective member would be entitled on joining" and the substitution of "the member is entitled from"; and
(c) subparagraph 18E(3)(d)(iii) has effect with the omission of "the prospective member would belong on joining the fund" and the substitution of "the member belongs". 18DA(4) [Application of subreg (2) beyond 31 December 1992]
Subregulation (2) extends to action performed by the fund after 31 December 1992 in relation to a prospective member who becomes a member on a date ( the joining date ) that occurs on or before 31 December 1992, if the fund performs the action at the earliest practicable time after the joining date.
18DA(5) [Advice to former members]An advice given under regulation 18F does not have to comply with paragraph 18F(c).
18DA(6) [Modified effect of reg 18F(d)]Paragraph 18F(d) has effect with the omission of "(c), (d) and (e)," and the substitution of "(c) and (d),".
In this regulation:
controlling interest
, in relation to a company, means:
(a) an interest in the company that enables the person holding the interest to:
(i) control the composition of the board of directors of the company; or
(ii) cast, or control the casting of, more than half of the maximum number of votes that could be cast at a general meeting of the company; or
(iii) control more than half of the issued share capital of the company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) an interest in another company that constitutes, under paragraph (a), a controlling interest in that other company, being:
(i) a company that, under paragraph (a), has a controlling interest in the first-mentioned company; or
(ii) a company that has a controlling interest of that kind by another application, or other applications, of this paragraph;
prospective member
, in relation to a year of income of a superannuation fund, means a person who:
(a) is not a member of that fund; and
(b) the trustees of the fund believe may become a member of the fund in that year;
relative
, in relation to an employer of a member, means:
(a) the parent, grandparent, brother, sister, uncle, aunt, cousin, nephew, niece, direct descendant or adopted child of the employer or of his or her spouse; and
(b) the spouse of the employer or of any other person specified in paragraph (a). 18E(2) [Advice re rules alteration, fund benefit]
The trustees of a superannuation fund must:
(a) if the governing rules of the fund are altered - as soon as practicable after that alteration, give to a member of the fund whose entitlements or rights are affected by the alteration written advice that explains the nature and purpose of the alteration and the effect of the alteration on those entitlements or rights; and
(b) in the case of a fund, other than an employer-sponsored fund - advise a prospective member in writing about:
(i) any benefits to which the prospective member would be entitled on joining the fund and the method of determining that entitlement; and
(ii) any conditions relating to those benefits; and
(c) in the case of an employer-sponsored fund - before, or as soon as practicable after, a person joins the fund advise the person in writing in accordance with subparagraphs (b)(i) and (ii). 18E(3) [Statements by multi-member fund trustees]
The trustees of a multi-member fund must:
(a) give to a person:
(i) to whom pension benefits are paid from the fund; or
at least once in each year of income of the fund, a statement that a copy of the latest report under subregulation 18H(2) and of any related notice under subregulation 18J(3) in respect of a year of income of the fund will be sent by the trustees to the person on request; and
(ii) who has deferred his or her entitlement to a benefit from the fund;
(b) obtain from a prospective member to whom, on or after 1 January 1993, advice is given under paragraph (2)(b) a written declaration that he or she has been given the advice; and
(c) give:
(i) in the case of a fund other than an employer-sponsored fund - to a prospective member a copy of the latest report referred to in subregulation 18H(2) and of any related notice under subregulation 18J(3) in respect of a year of income of the fund; and
(ii) in the case of an employer-sponsored fund - to a person before, or as soon as practicable after, he or she joins the fund, a copy of a report or notice referred to in subparagraph (i); and
(d) give to a prospective member of a fund:
(i) that is not a defined benefit superannuation fund; or
not being an employer-sponsored fund, a written statement in respect of each of the 3 preceding years of income of the fund:
(ii) that is a defined benefit superannuation in which accumulation accounts in the names of members are kept;
(iii) of the rate of any allotment of the net earnings of the fund to the accounts of members in the class of members to which, for the purposes of the governing rules of the fund, the prospective member would belong on joining the fund; or
(iv) if the net earnings of the fund were not allotted to the accounts of members by reference to those years of income - of the notional rate of allotment of the net earnings of the fund in those years of income to the accounts of members in that class; and
(e) give to a person before, or as soon as practicable after, he or she joins an employer-sponsored fund:
(i) that is not a defined benefit superannuation fund; or
a written statement, in respect of each of the 3 preceding years of income of the fund, that is referred to in subparagraph (d)(iii) or (iv); and
(ii) that is a defined benefit superannuation fund in which accumulation accounts in the names of members are kept;
(f) in the case of a fund, other than an employer-sponsored fund, in relation to which the only offer or invitation for the purposes of subsection 1018(1) of the Corporations Law is an excluded offer or excluded invitation within the meaning of that Law - give to a prospective member to whom advice is given under paragraph (2)(b) the following information:
(i) the name and address of any person or body having authority to manage, or to participate in the management of, the fund;
(ii) if a person or body who is not a trustee of the fund has been appointed to manage, or participate in the management of, the fund:
(A) the name of and business address of that person or body; and
(B) the nature of the relationship between the person or body and any trustee of the fund and any other person or body who has been so appointed;
(iii) a summary of the principal features of the operation of the fund;
(iv) the manner in which an amount credited to the account of the person as a member of the fund would be calculated on his or her withdrawal from the fund.
A standard specified in subregulation (2) or (3) is taken to have been met if the trustees are satisfied that:
(a) a person to whom the trustees are required by the standard to give information has been given the information by another person; and
(b) the other person has made a written declaration to that effect to the trustees. 18E(5) [Notice re payment to employer, alteration of rules]
The trustees of a multi-member fund to which the employer of a member of the fund contributes in respect of that member must give the member written notice of:
(a) any proposed payment from the fund to that employer not less than 3 months before the day when the payment is to be made, not being a payment reimbursing the employer for expenses incurred on behalf of the fund; and
(b) any proposal to alter the governing rules of the fund to increase the benefit payable to a member of the fund, if payment of that benefit would have the effect of making a payment from the fund:
(i) to the employer; or
not less than 3 months before the day when the alteration would take effect. 18E(6) [Member is associate of employer]
(ii) to a member who is an associate of the employer;
For the purposes of subparagraph (5)(b)(ii), a member is an associate of an employer if:
(a) the member is a relative of the employer; or
(b) the employer is or will be a company when the governing rules are altered and the member, or a relative of the member, holds or will hold a controlling interest in relation to the company when those rules are altered.
If a person ceases to be a member of a superannuation fund on a day other than the last day of a reporting period, the trustees of the fund must, as soon as practicable, advise the person, or the legal personal representative of the person, in writing about the following matters:
(a) the amount of the benefit entitlement of that person, identifying any amounts that:
(i) are required by the governing rules of the fund to be preserved in relation to the person; and
(ii) must be preserved in relation to the person to satisfy the superannuation fund conditions;
(b) the method of determining that entitlement;
(c) unless the person ceases to be a member because of his or her death:
(i) the amount of the death benefit in respect of the person on the day before he or she ceased to be a member of the fund or, if that amount cannot be determined before the death of the person, the method used to determine the amount; and
(ii) that the amount of the death benefit entitlement of the person may change as a result of his or her ceasing to be a member of the fund; and
(iii) the name of the person or body who is, or was, liable to pay the benefit and the address of the place where the person or body may be contacted in business hours;
(d) unless the person ceases to be a member of the fund because of his or her death, disablement or retirement from the workforce - the particulars referred to in subparagraphs 18G(2)(b)(i), (ii), (iii), (iv), (v) and (vi) and paragraphs 18G(2)(c), (d) and (e), as if:
(i) a reference in those provisions to a reporting period were a reference to the period from the first day in the reporting period in which the person ceased to be a member to the end of the day on which the person ceased to be a member; and
(ii) the word "person" were substituted for the word "member"; and
(e) if the person's old RBM for the purposes of Part IA is greater than the base old RBM specified in paragraph 2(a) of Schedule 2 - the person's old RBM.
The trustees of a superannuation fund must report in respect of each reporting period in accordance with this regulation to a person who was a member of that fund on the last day of that period.
18G(2) [Contents of report]A report must set out the following information:
(a) the name of the fund and any relevant sub-plan and, if the sub-plan is managed by a person or body, other than a trustee of the fund, the name of that person or body;
(b) if the amount of benefits that are vested in the member on withdrawal from the fund is determined on the basis of contributions made to the fund or on the basis of those contributions together with earnings based on those contributions - the following particulars:
(i) the amount of the benefits vested in the member at the beginning of the reporting period;
(ii) the amount of the benefits vested in the member at the end of that period;
(iii) the method of determining the amount of the benefits referred to in subparagraph (ii);
(iv) the portion of the amount of the benefits referred to in subparagraph (ii) that:
(A) is required by the governing rules of the fund to be preserved in relation to the member; andon his or her withdrawal from the fund;
(B) must be preserved in relation to the member to satisfy the superannuation fund conditions;
(v) the amount of contributions made by the member in the period;
(vi) the amount of net earnings allotted to the account of the member in the period or the rate at which those earnings were so allotted or both that amount and rate;
(vii) the amount of any current death benefit in respect of the member or the method used to determine that amount;
(c) if the amount of benefits that are vested in the member on withdrawal from the fund is determined on the basis of the benefits purchased under an endowment or whole of life policy - the amount of:
(i) the sum assured; and
(ii) any bonuses that have accrued to the member at the end of the reporting period; and
(iii) contributions made by that member during that period;
(d) if the amount of benefits that are vested in the member on his or her withdrawal from the fund is defined by reference to:
(i) the annual rate of salary of the member as at the date of that withdrawal or at a date before the withdrawal; or
the particulars referred to in subparagraphs (b)(i), (ii), (iii), (iv), (v) and (vii);
(ii) the amount of that salary averaged over a period of employment before the withdrawal;
(e) in the case of multi-member fund - the amount of any fees, charges or other expenses deducted in the reporting period from the amount in the account of the member. 18G(3) [Reasons re omission of net earnings and rate]
If a report sets out in respect of subparagraph (2)(b)(vi):
(a) the amount of net earnings allotted to the account of a member and any report in respect of the preceding reporting period did not set out the amount of net earnings so alloted; or
(b) the rate at which net earnings were allotted to the account of a member and any report in respect of the preceding reporting period did not set out the rate at which net earnings were so allotted;
the trustees must specify in the first-mentioned report the reason for not setting out the second-mentioned amount or the second-mentioned rate, as the case may be, unless the first-mentioned report sets out both that amount and rate.
In this regulation:
abridged financial information
means information that is:
(a) derived from the accounts of a multi-member fund; and
(b) set out in accordance with Schedule 8;
relative
, in relation to a member of a body or another person, means:
(a) the parent, grandparent, brother, sister, uncle, aunt, cousin, nephew, niece, direct descendant or adopted child of that member or person or of his or her spouse; or
(b) the spouse of the member or person or of any other person referred to in paragraph (a);
year of income
, in relation to a multi-member fund, means a year of income of the fund beginning on or after 1 July 1992.
The trustees of a multi-member fund must report in respect of each year of income of the fund in accordance with this regulation to persons who were members of that fund on the last day of the period referred to in subregulation 18J(4):
(a) immediately following that year; and
(b) within which the report, or a written statement that is a part of the report, must be given to members of the fund. 18H(3) [Contents of report]
A report must set out the following information:
(a) the name of the fund;
(b) if, in respect of the year of income to which the report relates and the 2 years of income preceding that year, the trustees believe:
(i) that the fund satisfied the superannuation fund conditions; and
a statement to that effect;
(ii) that the Commissioner is, or would be, satisfied that the fund is operating, or operated, in accordance with those conditions;
(c) in the absence of a statement referred to in paragraph (b):
(i) a statement in respect of each year of income in relation to which the fund will not, or may not, satisfy the superannuation fund conditions; and
(ii) a statement of any action that the trustees are taking, or propose to take, to have the fund meet those conditions;
(d) a statement in respect of the year of income to which the report relates and the 2 years of income preceding that year:
(i) as to whether the trustees of the fund have lodged, or intend to lodge, the return and certificates referred to in subsection 12(1) of the Act or the Commissioner has given notice under subsection 13(1) of the Act in relation to the fund; and
(ii) as to whether the fund has received a notice from the Commissioner about whether the fund has satisfied the superannuation conditions; and
(iii) setting out the contents of any notice referred to in subparagraph (ii);
(e) a statement relating to the accounts of the fund in respect of the year of income to which are attached:
(i) audited accounts, and the auditor's report, in respect of that year; or
(ii) if the accounts have not been audited or, after having been audited, have not been and are not to be distributed to members:
(A) abridged financial information relating to those accounts; and
(B) any qualification that has been made, or that the auditor has advised the trustees is likely to be made, in the auditor's report; and
(C) a statement of the date when the audit was, or is likely to be, completed; and
(D) advice as to when the audited accounts and the auditor's report will be sent to members or when those accounts and that report are, or will be, available to members on request;
(f) in respect of the year of income to which the report relates and the year of income preceding that year, the proportions, or the amounts, of the value of assets of the fund specified in the respective provisions of subregulation 18K(1) on which:
(i) the audited accounts referred to in paragraph (e) in respect of the relevant year of income are based; or
(ii) abridged financial information referred to in that paragraph in respect of the relevant year of income is based;
(g) if the value of particular assets of the fund exceeds 5% of the value all assets referred to in paragraph (f) in respect of a year of income to which that paragraph applies - a description of the particular assets and the proportion of the value of those assets in relation to the value of all assets referred to in that paragraph in respect of that year of income;
(h) subject to subregulation (4), if:
(i) the trustees of the fund have an interest in particular assets in that capacity; and
(ii) the value of the interest exceeds 5% of the value all assets referred to in paragraph (f) in respect of a year of income to which that paragraph applies; and
the value, and a description, of the assets comprising the interest of the trustees and of the other assets to which subparagraph (iii) applies and the proportion of the value of all those assets to the value of all assets referred to in paragraph (f) in respect of that year of income;
(iii) authority to manage, or to participate in the management of, those assets and other assets to which subparagraphs (i) and (ii) apply is held by 1 or more of:
(A) a person or body other than a person or body specified in subregulation 18K(2); or
(B) a person who is a relative of a natural person, or of an individual member of a body, to whom sub-subparagraph (A) applies;
(i) a statement of the investment objectives of the trustees for the fund and of the policy of the trustees to achieve those objectives;
(j) a statement of:
(i) the objectives of the trustees at the beginning of the year of income that involve investing in instruments prescribed in subregulation 18K(3) for the purpose of managing fluctuations in the earnings of the fund and in the value of the assets of the fund; and
(ii) the policy of the trustees to achieve those objectives and the year of income in which that policy is being, or is to be, pursued; and
(iii) the assessment of the trustees of the likely effect of that policy on the value of the assets of the fund at the end of the year of income referred to in subparagraph (ii);
(k) in the case of a fund:
(i) that is not a defined benefit superannuation fund; or
a statement of the manner in which the net earnings of the fund are allotted to the accounts of members and of the manner in which the reserves of the fund are determined;
(ii) that is a defined benefit superannuation fund in which accumulation accounts in the names of members are kept;
(l) a statement of the total earnings of the fund in the year of income to which the notice relates and the 2 years of income preceding that year;
(m) a statement of the governing rules of the fund dealing with:
(i) the attribution of administrative and other costs of the operation of the fund to the accounts of members of the fund; and
(ii) the deduction of fees, charges and expenses from those accounts; and
(iii) a summary of the policy of the trustees, or of any person referred to in paragraph (o), in relation to the administration of those rules;
(n) if the employer of a member of the fund contributes to the fund in respect of the member, a statement to the effect that any contribution:
(i) that is, to the best knowledge of the trustees, due and payable to the fund; or
has been paid or, if the contribution has not been paid, a statement of the action taken, or proposed to be taken, by the trustees to have the contribution paid;
(ii) within the range of amounts that is recommended in the latest actuarial investigation into the fund referred to in paragraph 17(1)(a) to be paid to the fund;
(o) if a person other than a trustee of the fund has been appointed to manage, or participate in the management of, the fund:
(i) the name of that person; and
(ii) the nature of the relationship between the person and any trustee of, or employer sponsoring, the fund and any other person who has been so appointed;
(p) the name of any person holding office as a trustee in the year of income and a statement as to whether that person was appointed by members of the fund, an employer or employers sponsoring the fund or another person or group of persons;
(q) the name of any person, or of each member of any group of persons, managing a sub-plan in the year of income and a statement as to whether that person or member was appointed by members of the fund, an employer or employers sponsoring the fund or another person or body;
(r) the name and address of the person or body having authority to manage, or participate in the management of the fund, not being a trustee of the fund or an employer sponsoring the fund;
(s) the name of a person to whom a member of the fund may make an inquiry about the fund and the place where that person may be contacted during business hours;
(t) advice that the trustees of the fund must make available to a member of the fund on request by the member a document to which regulation 18L or 18M applies in accordance with that regulation;
(u) any other information that the members of a multi-member fund would reasonably require to make an informed judgment on the management and performance of the fund. 18H(4) [Where particulars of subsec (3)(h) matter not required]
The trustees of a fund are not obliged to include in a report particulars of the matter described in paragraph (3)(h) if the trustees, or a person other than a trustee who has authority to manage, or participate in the management of, the fund could not reasonably have been expected to be aware of those particulars when the report was prepared.
18H(5) [Abridged financial information]A statement of abridged financial information must be completed in accordance with a direction for completing the statement at the foot of Schedule 8.
In this regulation:
report
means a report mentioned in regulation 18G or 18H.
(a) set out the particulars of the report in 1 or more written statements; and
(b) if particulars of the report are set out in more than 1 written statement and all those particulars are not included in each statement - include in each statement advice:
(i) that that statement does not set out all the particulars of the report; and
(ii) that any particulars that are not set out in the statement are set out in a previous statement or are to be set out in a later statement; and
(iii) about when, and where during business hours, copies of all statements will be available; and
(c) include a statement by the trustees of the superannuation fund concerned that the trustees believe that the fund has satisfied the superannuation fund conditions in the period beginning at the end of the reporting period or year of income to which the report relates to the end of the day when preparation of the report was completed; and
(d) be given to each member of the fund in accordance with subregulation (4). 18J(3) [Notice of changes in report]
The trustees of a superannuation fund must give to each member of the fund notice in writing of any material change in:
(a) a matter required to be set out in a report; or
(b) a document required to be attached to a statement included in a report;
unless it is not reasonably practicable to give notice before the next report is required to be given to the member in accordance with subregulation (4).
18J(4) [Time for report]The trustees of a superannuation fund who are reporting to a member of the fund must:
(a) if the particulars of a report are set out in 1 written statement in respect of a reporting period or year of income to which the statement relates - give the report to the member as soon as practicable, but not later than 6 months after the end of that period or year; and
(b) if the particulars of a report are set out in more than 1 written statement and none of the statements is given to the member in the reporting period or year of income to which the statement relates - give each statement to the member as soon as practicable, but not later than 6 months after the end of that period or year; and
(c) subject to paragraph (d), if the particulars of a report are set out in more than 1 written statement and 1 or more, but not all, of the statements is, or are, given to the member in the reporting period or year of income to which the statement relates - give any remaining statement to the member as soon as practicable, but not later than 9 months after the end of that period or year; and
(d) if a written statement that forms part of a report sets out particulars of matters required by regulations 18G and 18H to be included in a report to that member - give the statement to the member as soon as practicable, but not later than 6 months after the end of the reporting period or year of income to which the matter relates, whichever ends first. 18J(5) [Delivery of reports and notices]
Subject to subregulation (6), a standard specified in subregulation (2) or (3) is not taken to have been met unless:
(a) the trustees of the fund:
(i) give a copy of a report or notice referred to in that subregulation to each member of the fund; or
(ii) send a copy of the report or notice to each member of the fund by means of telecommunication; or
(b) in the case of a member whose whereabouts are not known to the trustees - the trustees have made reasonable efforts to deliver a copy of a report or notice to the member; or
(c) the trustees are satisfied that another person:
(i) has given or sent a copy of the report or notice to the member in accordance with subparagraph (a)(i) or (ii); or
and has made a written declaration to that effect to the trustees. 18J(6) [Reasonable efforts to deliver reports]
(ii) has made reasonable efforts to deliver a copy of a report or notice to the member;
For the purposes of paragraph (5)(b) and subparagraph (5)(c)(ii), reasonable efforts are taken to have been made to deliver to a member a copy of a report or notice in respect of a reporting period or year of income if:
(a) a copy of a report or notice in respect of a previous reporting period or year of income was posted with correct pre-paid or franked postage to the member at the member's last known address and is returned undelivered to the trustees, or other person, concerned; and
(b) the trustees are not informed of another address of the place of residence or business of the member.
For the purposes of paragraph 18H(3)(f), the following assets are specified:
(a) an interest in Commonwealth, State or Territory securities or securities of a public authority of the Commonwealth or of a State or Territory;
(b) an interest in securities issued by the government of a foreign country or by a public authority of a foreign country;
(c) an interest in fixed interest securities not referred to in paragraph (a) or (b);
(d) an interest in a loan secured by mortgage, not being an interest referred to in paragraph (c);
(e) an interest in real property, other than an interest referred to in paragraph (d);
(f) an interest in a share in a body incorporated in Australia the shares in which are traded on a securities exchange;
(g) an interest in a share in a body incorporated in Australia the shares in which are not traded on a securities exchange;
(h) an interest in a share in a body incorporated in a foreign country the shares in which are traded on a securities exchange;
(i) an interest in a share in a body incorporated in a foreign country the shares in which are not traded on a securities exchange;
(j) an interest under a life policy;
(k) an interest in cash or in an interest-bearing deposit that is not described in another provision of this subregulation;
(l) an interest in a pooled superannuation trust;
(m) an interest in a unit trust, other than a pooled superannuation trust;
(n) any other assets. 18K(2) [Specified persons or bodies]
For the purposes of paragraph 18H(3)(h), the following persons or bodies are specified:
(a) a trustee of the fund in that capacity;
(b) a person or body, other than a trustee of the fund, appointed to manage, or participate in the management of, the fund in the capacity of manager of the fund;
(c) a person or body giving advice to, or acting on behalf of, another person or body referred to in paragraph (a) or (b) in the proper performance of the functions attaching to a professional capacity or a business relationship in relation to the other person;
(d) a person who, otherwise than for valuable consideration given by or on behalf of another person, votes as a proxy or representative of the other person at a meeting of members of a body corporate having an interest that gives the body corporate an authority referred to in subparagraph 18H(3)(h)(iii);
(e) an agent or employee of a person or body described in paragraph (a), (b), (c) or (d) in that capacity. 18K(3) [Prescribed instruments]
For the purposes of subparagraph 18H(3)(j)(i), the following instruments are prescribed:
(a) a financial instrument that is commonly known as:
(i) a futures contract; or
(ii) a forward contract; or
(iii) an interest rate swap contract; or
(iv) a currency swap contract; or
(v) a forward exchange rate contract; or
(vi) a forward interest rate contract;
(b) an instrument under which a right or an option in respect of a contract referred to in paragraph (a) may be exercised. 18K(4) [Instruments for exercise of right or option]
An instrument prescribed in paragraph (3)(b) includes any agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal; and
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights.
Within 28 days of receipt of a request from a person who is a member of a superannuation fund, the trustees of the fund must disclose to the person information in accordance with this regulation.
18L(2) [Postal address]A person who makes a request must specify in the request his or her postal address.
18L(3) [Information to be made available]The trustees of the fund must make available to the person:
(a) a copy of such returns, certificates and notices referred to in sections 12 and 13 of the Act as are referred to in the request; and
(b) a copy of such auditor's reports referred to in paragraph 17(1)(c) as are referred to in the request; and
(c) a copy of, or an extract from, such statements referred to in paragraph 17(2)(a), (b), (c) or (d) as are referred to in the request, being statements contained in such actuarial reports as are so specified.
Within 28 days of receipt of a request from a person who is a member of a multi-member fund, the trustees of the fund must disclose to the person information in accordance with this regulation.
18M(2) [Postal address]A person who makes a request must specify in the request his or her postal address.
18M(3) [Information to be made available]The trustees of the fund must make available to the person a copy of:
(a) the latest accounts of the fund that have been audited in accordance with paragraph 17(1)(c) and the auditor's report referred to in the request; and
(b) the provisions of the governing rules of the fund:
(i) specified in the request that relate to the membership of the person in the fund; or
(ii) if particular provisions are not specified in the request - that would affect the entitlements or rights of the member in relation to the fund.
A requirement mentioned in subregulation 18L(3) or 18M(3) in relation to a document referred to in that subregulation is taken to have been met if:
(a) a document requested by a member is sent by the trustees to the member at his or her postal address; or
(b) where another person has given the document to the member - the other person has made a written declaration to that effect to the trustees; or
(c) in the case of a document to which subregulation 18M(3) applies - the document is kept:
(i) if the member of the fund is not gainfully employed - at a place within 25 kilometres of the residence of the member; or
and suitable accommodation and facilities are available at the place in business hours for the member to inspect, and take copies of, those accounts and rules.
(ii) in any other case - at a place within 25 kilometres of the workplace of the member;
If the trustees of a superannuation fund have disclosed particular information to a member under regulation 18L or 18M in a year of income of the fund, they are not required to disclose the same information to the member again in that year.
The trustees of a superannuation fund must give, on request, a copy of the current governing rules of the fund to an employer who makes superannuation guarantee contributions to the fund.
In subregulation (1), current governing rules , in relation to a superannuation fund, means the governing rules of the fund as in force on 1 July 1992 or on the day on which the employer first makes superannuation guarantee contributions to the fund, whichever day is the later, and any subsequent amendments to thoserules in force on the day of the request.
The trustees of a superannuation fund in respect of which the Commissioner is satisfied that the fund:
(a) satisfies the superannuation fund conditions; or
(b) should be treated as if it satisfied the superannuation fund conditions;
must give, or cause to be given, a statement to that effect, signed by or on behalf of the trustees, to an employer who:
(c) makes, or is about to make, superannuation guarantee contributions to the fund; and
(d) has not been given a statement to that effect by the trustees before the commencement of this regulation.
A statement under subregulation (3) must be given to the employer:
(a) if the employer made one or more superannuation guarantee contributions before the commencement of this regulation - before or as soon as practicable after the employer makes the first contribution after the commencement of this regulation; or
(b) in any other case - before or as soon as practicable after the employer makes the first contribution.
Subject to regulation 18QA, if the trustees of a superannuation fund become aware of the fact that the fund has ceased to satisfy the superannuation fund conditions, the trustees must give notice in writing of the fact to an employer who contributes to the fund.
If the trustees of a superannuation fund become aware, other than by notice from the Commissioner, of the fact that the fund has ceased to satisfy the superannuation fund conditions, the trustees must give notice in writing of the fact to the Commissioner.
18Q(6) [Time for notice]A notice under subregulation (4) or (5) must be given as soon as practicable.
18Q(7) ["superannuation guarantee contributions"]In this regulation, superannuation guarantee contributions , in relation to a superannuation fund, means contributions to the fund that result in a reduction of the superannuation guarantee charge under the Guarantee Act in respect of one or more members of the fund.
For the purposes of subparagraph 12(3A)(a)(ia) of the Act, a trustee's response to a breach of a superannuation fund condition is covered by this regulation if the trustee causes the breach to be rectified within 30 days after becoming aware of the breach.
18QA(2) [Notice of breach to employer sponsors]For the purposes of subparagraph 12(3A)(a)(ia) of the Act, the Commissioner may give to the trustee of a superannuation fund written notice requesting the trustee to take all reasonable steps to notify a breach of a superannuation fund condition to all prescribed employer sponsors in relation to the fund.
18QA(3) [Prescribed employer sponsor: para (a)(ia)]For the purposes of subparagraph 12(3A)(a)(ia) of the Act, a prescribed employer sponsor, in relation to a fund, is an employer sponsor who was an employer sponsor in relation to the fund at any time during which a breach of a superannuation fund condition referred to in that subparagraph existed.
18QA(4) [Waiver of requirements]For the purposes of subparagraph 12(3A)(a)(ib) of the Act, the Commissioner may give to the trustee of a superannuation fund a written waiver from the requirements of that subparagraph.
18QA(5) [Prescribed employer sponsor: para (a)(ib)]For the purposes of subparagraph 12(3A)(a)(ib) of the Act, a prescribed employer sponsor, in relation to a fund, is an employer sponsor who was an employer sponsor in relation to the fund at any time during which a breach of a superannuation fund condition referred to in that subparagraph existed.
18QA(6) [Period to take reasonable steps]For the purposes of subparagraph 12(3A)(a)(ib) of the Act, the specified period is 60 days after the trustee becomes aware of the breach.
For the purposes of subsection 10(1) of the Act:
(a) the period of 60 days is prescribed; and
(b) the information specified in Form 1 is prescribed. 18R(2) [Information for funds established on or after 1 July 1992]
Information given under that subsection must be given in accordance with Form 1.
18R(3) [Accompanying certificate]Trustees who give Form 1 to the Commissioner must give to the Commissioner at the same time a certificate in accordance with Form 2.
18R(4) [Interpretation]In this regulation, a reference to a form by number is a reference to the form so numbered in the Schedule.
The trustees of a defined benefit superannuation fund must give a notice in respect of a year of income of the fund beginning on or after 1 July 1992, on request, to an employer who contributes to the fund:
(a) in respect of employees of that employer; and
(b) in amounts that do not exceed the minimum amounts required by the Guarantee Act so that superannuation guarantee charge is not payable by the employer. 18S(2) [Contents of notice]
(a) include the names of those employees and, if applicable, the names of those employees in each specified class of employees of the fund within the meaning of section 10 of the Guarantee Act; and
(b) state the period, or periods, in that year in which those employees were members of the fund; and
(c) state the annual salary (if any), for the purposes of the governing rules of the fund, of each of those employees as at the date on which the notice was prepared; and
(d) state any notional employer contribution rate, within the meaning of section 10 of that Act, in relation to each of those employees; and
(e) if any alteration of the governing rules of the fund causes a benefit certificate within the meaning of that section to lapse - include notice of the alteration.
For the purposes of subsection 7(1) of the Act, the standards set out in this Division are prescribed in relation to defined benefit superannuation funds.
(Omitted by SR No 213 of 1993)
(Omitted by SR No 213 of 1993)
(Omitted by SR No 213 of 1993)
(Omitted by SR No 213 of 1993)
This regulation applies in relation to the financial year beginning on 1 July 1993 to a fund other than a fund the benefits of which are guaranteed by the Commonwealth or by a State or Territory.
18Y(2) [Required rate]The rate at which contributions are made by an employer to a fund in respect of a member of the fund must be:
(a) if one or more actuarial investigations into the fund have been made - a rate not less than the rate recommended in the latest actuarial investigation as the minimum rate at which the contributions should be made; or
(b) if no actuarial investigation into the fund has been made - the rate determined by an actuary to be the rate that would have been recommended by the actuary in accordance with paragraph 17(2)(c) for the purposes of an actuarial report referred to in paragraph 17(1)(b) if an actuarial investigation into the fund had been made.
For the purposes of the definition of approved trustee in subsection 3(1) of the Act, the following bodies and classes of bodies are specified:
(a) a life assurance company;
(b) an eligible bank;
(c) an eligible financial corporation;
(d) a registered organisation;
(e) a corporation authorised by or under a law of a State or Territory to act as an executor, administrator and trustee;
(f) the Bank of New South Wales Nominees Pty Limited. REGULATION 20 20 APPROVED RULES
For the purposes of the definition of approved rules in subsection 3(1) of the Act, the following kinds of provisions are specified:
(a) provisions requiring the trustee or trustees of the fund to maintain a register of depositors containing the name and current residential address of each depositor;
(b) provisions requiring the trustee or trustees of the fund to keep such accounting records as correctly record and explain the transactions of the fund and the financial position of the fund and to keep those accounting records in such manner as will enable:
(i) the preparation from time to time of true and fair accounts of the fund; and
(ii) the accounts of the fund to be conveniently and properly audited;
(c) provisions requiring the repayment to a depositor, or the legal personal representative of a depositor, of the whole of the amount deposited with the fund by the depositor, together with accumulated earnings on such amount, not later than:
(i) where the depositor has died - 90 days after the grant of probate or letters of administration in relation to the depositor's estate; or
(ii) in any other case - the sixty-fifth anniversary of the depositor's birth;
(d) provisions prohibiting the trustee or trustees of the fund from borrowing money;
(e) provisions prohibiting the trustee or trustees of the fund from lending money to, or otherwise investing moneys in, a related entity other than a related entity that is an eligible bank;
(f) provisions prohibiting the trustee or trustees of the fund from paying pensions or annuities to depositors;
(g) provisions that do not permit a depositor, or the legal personal representative of a depositor, to receive, otherwise than in the form of a repayment of the whole or a part of an amount deposited with the fund by the depositor or accumulated earnings on such an amount, any amount from the fund;
(h) provisions that do not permit a depositor to assign, transfer, mortgage or encumber the depositor's interest in an amount deposited with the fund or any accumulated earnings on such an amount;
(ha) provisions that do not allow a depositor to withdraw an amount (excluding management and exit charges) of less than $500 from the fund unless the withdrawal is necessary to close the depositor's account;
(j) provisions that require a certificate of a registered auditor to be obtained, in relation to each financial year or other accounting period of the fund, stating whether, at all times during the financial year or other accounting period:
(i) the rules of the fund were approved rules; and
(ii) those rules of the fund were complied with.
For the purposes of subsection 8(1) of the Act, the following standards are prescribed in relation to the preservation and portability of amounts deposited with approved deposit funds and of earnings on such amounts:
(a) the trustee or trustees of an approved deposit fund shall not accept the transfer to it of any amounts of a kind referred to in regulation 9 or 10 or of any amounts consisting of benefits arising from a superannuation fund of a kind referred to in paragraph 23(ja) of the Tax Act, as in force at the commencement of this regulation, or to which section 23FB of that Act as so in force applies, being amounts transferred to the first-mentioned fund, on behalf of a depositor, by another approved deposit fund or a superannuation fund, unless any such transferred amounts are required to be preserved in accordance with:
(i) where the amounts are of a kind referred to in regulation 9 or 10 - the standards set out in paragraph (b); or
as the case requires;
(ii) where the amounts comprise benefits arising from a superannuation fund of a kind referred to in paragraph 23(ja) of the Tax Act, as in force at the commencement of this regulation, or to which section 23FB of that Act as so in force applies - either the terms and conditions referred to in paragraph 23(ja) of that Act as so in force or terms and conditions that comply with paragraph 23FB(2)(f) of that Act as so in force, whichever are applicable;
(b) in relation to each depositor with an approved deposit fund, amounts of the kind referred to in paragraph (a) transferred to the fund on behalf of that depositor, and earnings allotted to the depositor, in accordance with the terms of the governing rules, on the basis of such amounts, shall be preserved until:
(i) those amounts are transferred in accordance with paragraph (d);
(ii) the depositor has:
(A) retired from the workforce; and
(B) attained an age of not less than 55 years; or
(iii) those amounts become payable in one of the following circumstances:
(A) the retirement of the depositor from the workforce before attaining the age of 55 years on the ground of permanent incapacity or permanent invalidity;
(B) the death of the depositor;
(BA) the attainment by the depositor of the age of 65 years;
(C) the permanent departure of the depositor from Australia;
(D) such other circumstances (if any) as the Commissioner approves;
(c) a depositor seeking payment of benefits from an approved deposit fund on his or her retirement from the workforce on the ground of permanent incapacity or permanent invalidity shall be required to give to the trustee or trustees of the fund a certificate signed by 2 registered medical practitioners certifying that, in the opinion of those medical practitioners, the depositor is unlikely ever to be able to work again in a job for which the depositor is reasonably qualified by education, training or experience;
(d) all amounts required under paragraph (b) to be preserved in relation to a person shall, at the request of the person, be transferred directly to:
(i) another approved deposit fund nominated by the person, being a fund that is required to preserve any amounts so transferred in accordance with the standards set out in this regulation;
(ii)a superannuation fund nominated by the person, being a fund of which the person is, or intends to become, a member and that is required to preserve any amounts so transferred in accordance with the standards set out in these Regulations; or
(iii) a deferred annuity nominated by the person, being a deferred annuity that cannot be surrendered or assigned before the person attains the age of 55 years and that does not pay benefits except in the circumstances specified in subparagraph (b)(ii) or (iii).
(a) nominated by a person to whom paragraph (1)(d) applies; and
(b) the benefits of which are payable not earlier than the happening of a circumstance referred to in subparagraph (1)(b)(ii) or sub-subparagraph (1)(b)(iii)(A), (B), (BA), (C) or (D);
is not, for the purposes of subparagraph (1)(d)(iii), a deferred annuity that can be assigned before the person attains the age of 55 years only because the value of the annuity may, with the consent of that person, be commuted and transferred, before he or she attains that age, to:
(c) an approved deposit fund referred to in subparagraph (1)(d)(i); or
(d) a superannuation fund referred to in subparagraph (1)(d)(ii); or
(e) another deferred annuity referred to in subparagraph (1)(d)(iii).
For the purposes of subsection 8(1) of the Act, the following standards are prescribed in relation to the disclosure of information to depositors with approved deposit funds:
(a) the trustee or trustees of an approved deposit fund shall give to each depositor with the fund, as soon as practicable after the end of the year of income of the fund commencing on 1 July 1988 and of each succeeding year of income (but, in any event, within 6 months after the end of each such year), a written statement setting out:
(i) the balance in the depositor's account with the fund at the commencement of the first day of the year of income to which the statement relates;
(ii) the total amount of deposits made by or on behalf of the depositor to that account during that year of income;
(iii) the total amount of the earnings of the fund allotted to the depositor during that year of income;
(iv) the total amount of the withdrawals made from that account during that year of income; and
(v) the balance in that account at the expiration of the last day of that year of income;
(b) where a person ceases to be a depositor with an approved deposit fund on or after 1 January 1989, on a day other than the last day of a year of income of the fund, the trustee or trustees of the fund shall give to the person as soon as practicable thereafter a written statement setting out:
(i) the balance in that person's account with the fund at the commencement of the first day of the year of income during which the person ceases to be a depositor;
(ii) the total amount of deposits made by or on behalf of the person to that account during the period commencing on the first day of that year of income and ending at the expiration of the day on which the person ceases to be a depositor;
(iii) the total amount of the earnings of the fund allotted to the person during the period referred to in subparagraph (ii);
(iv) the total amount of the withdrawals made from that account during the period referred to in subparagraph (ii); and
(v) the balance in that account at the expiration of the day on which the person ceases to be a depositor;
(c) where a person becomes for the first time a depositor with an approved deposit fund, the trustee or trustees of the fund shall give to the person as soon as practicable thereafter a written statement containing details of the operation of the fund, including the management of deposits and the conditions relating to the transfer of deposits for preservation in other approved deposit funds, superannuation funds and deferred annuities;
(d) the trustee or trustees of an approved deposit fund shall give to a depositor with the fund, on request by that depositor:
(i) where the request is made on or after 1 January 1989 - a written statement setting out:
(A) the balance in the depositor's account with the fund at the commencement of the first day of the year of income during which the request is made;
(B) the total amount of deposits made by or on behalf of the depositor to that account during the period commencing on the first day of that year of income and ending at the expiration of the day before the day on which the request is made;
(C) the total amount of the earnings of the fund allotted to the depositor during the period referred to in sub-subparagraph (B);
(D) the total amount of the withdrawals made from that account during the period referred to in sub-subparagraph (B); and
(E) the balance in that account at the expiration of the day on which the request is made; and
REGULATION 23 MATTERS TO BE INCLUDED IN GOVERNING RULES OF APPROVED DEPOSIT FUNDS 23(1) [Prescribed standards]
(ii) not more than once in respect of each year of income of the fund, unless the trustee or trustees agree to do so, a copy of such returns, certificates and notices referred to in sections 14 and 15 of the Act as are specified in the request.
For the purposes of subsection 8(1) of the Act, the standards in subregulations (2), (3) and (4) are prescribed.
23(2) [Time for inclusion of standards]Where a requirement of a standard prescribed under the Act, other than by this regulation, and having effect on 1 January 1990 is applicable to the operation of an approved deposit fund, the governing rules of the fund must, on and after:
(a) the day on which the return for the fund for the purposes of section 14 of the Act for the year of income that ends on 30 June 1990 is given to the Commissioner; or
(b) 15 December 1990;
whichever is the earlier:
(c) include the requirement; or
(d) include a provision that has the effect that the requirement, as in force from time to time, is taken to be included in the governing rules. 23(3) [Standards not included by required time]
(a) a requirement referred to in subregulation (2) is applicable to the operation of an approved deposit fund established on or before 30 June 1990; and
(b) the governing rules of the fund do not, on 30 June 1990:
(i) include the requirement; or
(ii) include a provision that has the effect that the requirement, as in force from time to time, is taken to be included in the governing rules;
the trustees of the fund must:
(c) have made before 30 June 1990 arrangements in writing for the governing rules of the fund to be amended to:
(i) include the requirement referred to in paragraph (a); or
(ii) include the provision referred to in subparagraph (b)(ii); and
(d) if required to do so by the Commissioner by notice in writing, produce to the Commissioner, within a period of not less than 14 days specified in the notice, documentary evidence that satisfies the Commissioner that the trustees have so made those arrangements. 23(4) [Time for inclusion of standards gazetted after 1/1/90]
Where a regulation prescribed under the Act, other than by this regulation, and notified in the Gazette after 1 January 1990:
(a) amends a standard in a manner that effects a requirement applicable to the operation of an approved deposit fund; or
(b) prescribes a standard containing a requirement applicable to the operation of an approved deposit fund;
the governing rules of the fund must, on and after 30 June in the second calendar year after the calendar year in which:
(c) the amendment referred to in paragraph (a); or
(d) the requirement referred to in paragraph (b);
commences, or is notified in the Gazette, whichever is the later:
(e) include the amendment referred to in paragraph (a) or the requirement referred to in paragraph (b), as the case may be; or
(f) include a provision that has the effect:
(i) that the amendment referred to in paragraph (a) is taken to be included in the governing rules; or
(ii) that the requirement referred to in paragraph (b), as in force from time to time, is taken to be included in the governing rules.
In this Part, unless the contrary intention appears:
eligible investor statement
means a statement in accordance with regulation 23D;
marketing manager
, in relation to a pooled superannuation trust, means a person who, in accordance with the governing rules of the trust, holds units in the trust as a manager of the affairs of the trust;
notice of compliance
, in relation to a superannuation fund, an approved deposit fund or a pooled superannuation trust, in relation to a year of income:
(a) means a notice:
(i) under section 12, 14 or 15B of the Act stating that the Commissioner is satisfied that the fund or trust satisfied; or
the superannuation fund, approved deposit fund or pooled superannuation trust conditions, as the case requires, in relation to that year of income; but
(ii) under section 13, 15 or 15C of the Act stating that the Commissioner is satisfied that the fund or trust should be treated as if it had satisfied;
(b) does not include a notice referred to in paragraph (a) that has ceased to have effect because of the operation of subsection 12(5), 13(2), 14(5), 15(3), 15B(5) or 15C(2) of the Act;
notice of non-compliance
, in relation to a superannuation fund, an approved deposit fund or a pooled superannuation trust, in relation to a year of income:
(a) means a notice under section 12, 14 or 15B of the Act stating that the Commissioner is not satisfied that the fund or trust satisfied the superannuation fund, approved deposit fund or pooled superannuation trust conditions, as the case requires, in relation to that year of income; but
(b) does not include a notice referred to in paragraph (a) that has ceased to have effect because of the operation of subsection 12(4), 14(4) or 15B(4) or section 16 of the Act;
person
includes a life assurance company referred to in subparagraph 3A(1)(a)(iii), a registered organisation referred to in subparagraph 3A(1)(a)(iv) and an entity referred to in subparagraph 3A(1)(a)(v).
For the purposes of the references in regulations 23F, 23G and 23H to the first, second, third or a subsequent year of income, or to a completed year of income, of a superannuation fund, the first year of income of a public sector fund in operation before 1 July 1990 is to be taken to be the year of income that commenced on 1 July 1990.
23A(3) [First year of income of PST]For the purposes of the references in regulations 23F, 23G and 23H to the first, second, third or a subsequent year of income, or to a completed year of income, of a pooled superannuation trust, the first year of income of a pooled superannuation trust that is a unit trust that was in operation before 1 July 1988 is to be taken to be the year of income that commenced on 1 July 1988.
For the purposes of subsection 8A(1) of the Act, the standards applicable to the operation of pooled superannuation trusts are the standards prescribed by regulations 23C, 23D, 23E, 23F, 23G, 23H, 23J, 23K, 23L, 23M, 23N and 23P.
The trustees of a pooled superannuation trust must not, on or after 1 March 1990, permit a person to become a holder of units, or additional units, in the trust unless the trustees have received an eligible investor statement by the person in relation to units in the trust.
An eligible investor statement made by a person in relation to units in a pooled superannuation trust:
(a) must be given to the trustees of the trust; and
(b) must state that the person is at the date of the statement eligible to hold the units; and
(c) must:
(i) state the grounds on which the person is eligible under regulation 23E to hold the units; and
(ii) where:
(A) regulation 23F, 23G or 23H applies in relation to the person; andstate the grounds on which the person is eligible to hold the units; and
(B) the person is eligible in spite of regulation 23F or 23G, or under regulation 23H, to hold the units;
(iii) state:
(A) that the person has not ceased under regulation 23K to be eligible to hold the units; or
(B) if the person has ceased under regulation 23K to be eligible to hold the units - the grounds on which the person is to be taken under subregulation 23L(6) not to have ceased to be eligible to hold the units; and
(d) where the statement refers to a notice of compliance given to the person as trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust - must be accompanied by a copy of the notice; and
(e) must be in writing; and
(f) must set out the date of the statement; and
(g) must be signed:
(i) by the person; or
(ii) by another person authorised by the person in writing to sign eligible investor statements; or
(iii) where the person is a registered organisation - by the public officer of the organisation or by a person authorised in writing by the public officer to sign eligible investor statements.
For the purposes of an eligible investor statement, a person is not eligible to hold units in a pooled superannuation trust unless the units are held or, in the case of units proposed to be held, are to be held by:
(a) the person as the trustee of:
(i) a superannuation fund; or
(ii) an approved deposit fund; or
(iii) a pooled superannuation trust; or
(b) the person on behalf of the trustee of a fund or trust referred to in paragraph (a) in accordance with the governing rules of that fund or trust; or
(c) the person as trustee of a public sector fund during the period ending on 30 June 1990 or a part of that period; or
(d) a life assurance company referred to in subparagraph 3A(1)(a)(iii) as part of the assets of a tax-advantaged insurance fund referred to in that subparagraph; or
(e) a registered organisation referred to in subparagraph 3A(1)(a)(iv) solely for the organisation's tax-advantaged business referred to in that subparagraph; or
(f) an entity referred to in subparagraph 3A(1)(a)(v); or
(g) the person as marketing manager for the trust.
A trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust and a person acting on behalf of such a trustee is not eligible, for the purposes of an eligible investor statement, to hold units in a pooled superannuation trust:
(a) where the statement is made during the first year of income of the fund or first-mentioned trust - unless the trustee proposes to take during the second year of income of that fund or trust the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the first year of income; and
(b) where the statement is made during the second year of income of the fund or first-mentioned trust - unless:
(i) the trustee has been given a notice of compliance in relation to the first year of income of that fund or trust; or
(ii) where the trustee has not been given a notice of compliance or a notice of non-compliance in relation to the first year of income of that fund or trust - the trustee proposes to take during the second year of income of that fund or trust the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the first year of income.
A trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust and a person acting on behalf of such a trustee is not eligible, for the purposes of an eligible investor statement, to hold units in a pooled superannuation trust where the statement is made during the third or a subsequent year of income of the fund or first-mentioned trust unless:
(a) the trustee has been given a notice of compliance in relation to a previous year of income of the fund or first-mentioned trust; and
(b) the trustee has not been given a notice of non-compliance in relation to a year of income of the fund or first-mentioned trust that is later than that previous year of income; and
(c) a period of not more than 2 years, or such longer period as the Commissioner approves generally in writing, has elapsed since the end of that previous year of income.
In spite of regulation 23G, a trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust and a person acting on behalf of such a trustee is eligible, for the purposes of an eligible investor statement, to hold units in a pooled superannuation trust where the statement is made during the third or a subsequent year of income of the fund or first-mentioned trust:
(a) if, at the date of the statement:
(i) a period of at least 9 months, or of at least such longer period as the Commissioner approves generally in writing, has elapsed since the end of the latest completed year of income of the fund or first-mentioned trust; and
(ii) the trustee has taken the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the year of income that commenced on 1 July 1988, and each subsequent completed year of income, of the fund or first-mentioned trust; and
(iii) the trustee has not been given a notice of compliance or a notice of non-compliance in relation to the year of income that commenced on 1 July 1988, and any subsequent completed year of income, of the fund or first-mentioned trust; or
(b) if, at the date of the statement:
(i) the period referred to in subparagraph (a)(i) has not elapsed; and
(ii) the trustee has taken the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the year of income that commenced on 1 July 1988, and each subsequent completed year of income, of the fund or first-mentioned trust excluding the latest completed year of income; and
(iii) the trustee has not been given a notice of compliance or a notice of non-compliance in relation to the year of income that commenced on 1 July 1988, and any subsequent completed year of income, of the fund or first-mentioned trust.
The trustees of a pooled superannuation trust may, at any time, request a holder of units in the trust to give them an eligible investor statement in relation to the units.
23J(2) [Request to be made by 1/3/90]The trustees of a pooled superannuation trust must, not later than 1 March 1990, request each holder of units in the trust to give them an eligible investor statement in relation to the units unless the trustees have received an eligible investor statement by the holder in relation to the units.
23J(3) [Further request within one year]Where the trustees of a pooled superannuation trust have received an eligible investor statement, in relation to units in the trust, by a holder of units:
(a) who does not hold the units as the trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust; or
(b) who holds the units as the trustee of a public sector fund and the date of the statement is before 1 July 1990; or
(c) who:
(i) holds the units as the trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust; and
(ii) gave with the statement a copy of a notice of compliance that, on the date of the statement, related to the most recent completed year of income of the fund or trust mentioned in subparagraph (i);
the trustees of the first-mentioned trust must, not later than the anniversary of the date of the statement, request the holder to give them another eligible investor statement.
23J(4) [Further request within 9 months](a) the trustees of a pooled superannuation trust have received an eligible investor statement in relation to units in the trust by the holder of the units; and
(b) the holder:
(i) holds the units as the trustee of a superannuation fund (other than a public sector fund), an approved deposit fund or a pooled superannuation trust; or
(ii) holds the units as the trustee of a public sector fund and the date of the statement is on or after 1 July 1990; and
(c) the holder:
(i) did not give with the statement a copy of a notice of compliance in relation to the fund or trust mentioned in paragraph (b); or
(ii) gave with the statement a copy of a notice of compliance that on the date of the statement did not relate to the most recent completed year of income of the fund or trust mentioned in paragraph (b);
the trustees must, not later than 9 months after the date of the statement, request the holder to give them another eligible investor statement.
23J(5) [Form of request]A request under this regulation or regulation 23L by the trustees of a pooled superannuation trust:
(a) must be in writing; and
(b) must set out the date of the request; and
(c) must be signed:
(i) by the trustees; or
(ii) by a person authorised by the trustees in writing to sign requests under this regulation or regulation 23L, as the case requires.
Subject to subregulation 23L(6), where:
(a) under regulation 23J the trustees of a pooled superannuation trust request a person to give them an eligible investor statement; and
(b) the person fails to comply with the request within 30 days after the date of the request;
the person ceases to be eligible to hold units in the trust at the end of those 30 days.
Where the holder of units in a pooled superannuation trust:
(a) advises the trustees that the holder is not eligible under regulation 23E, 23F, 23G or 23H to hold the units; or
(b) ceases under regulation 23K to be eligible to hold the units;
the trustees must, within 14 days, request the holder:
(c) to dispose of the units within 30 days after the date of the request to a person who is eligible, for the purposes of an eligible investor statement, to hold the units; or
(d) to arrange with the trustees for the trustees to redeem the units within those 30 days. 23L(2) [Where unit holder fails to comply with request or give notice]
Where the holder of units in a pooled superannuation trust:
(a) fails to comply with a request under subregulation (1); and
(b) does not give the trustees of the trust a notice under subregulation (3);
the trustees must, within 60 days after the date of request, redeem the units.
23L(3) [Notice by unit holder re eligible investor statement]A holder of units in a pooled superannuation trust:
(a) who ceases under regulation 23K to be eligible to hold the units; and
(b) who receives a request under subregulation (1);
may, by notice in writing given to the trustees of the trust not later than 30 days after the date of the request, state the grounds on which:
(c) the holder has failed to give the trustees an eligible investor statement in accordance with the request under regulation 23J; and
(d) the holder expects to be able to give the trustees an eligible investor statement within 60 days after the date of the request. 23L(4) [Where grounds for failure to give statement not satisfactory]
Where the trustees of a pooled superannuation trust are not satisfied, on receipt of a notice under subregulation (3) from a holder of units in the trust:
(a) that the holder has reasonable grounds for failing to give them an eligible investor statement; and
(b) that the holder is likely to give them an eligible investor statement within 60 days after the date of their request to the holder under subregulation (1);
the trustees must, within 60 days after the request, redeem the units.
23L(5) [Statement not given after trustee's request](a) the trustees of a pooled superannuation trust are satisfied, on receipt of a notice under subregulation (3) from a holder of units in the trust, that paragraphs (4)(a) and (b) apply in relation to the holder; but
(b) the holder does not give them an eligible investor statement within 60 days after the date of their request to the holder under subregulation (1);
the trustees must, within 30 days after the end of those 60 days, redeem the units.
23L(6) [Unit holder deemed not to have ceased to be eligible](a) a holder of units in a pooled superannuation trust ceases under regulation 23K to be eligible to hold the units; and
(b) the trustees of the trust are satisfied, on receipt of a notice under subregulation (3) from the holder, that paragraphs (4)(a) and (b) apply in relation to the holder; and
(c) the holder gives them an eligible investor statement within 60 days after the date of their request to the holder under subregulation (1);
the holder is to be taken not to have ceased under regulation 23K to be eligible to hold units in the trust.
The trustees of a pooled superannuation trust must maintain a register of the holders of units in the trust setting out:
(a) the name of each holder; and
(b) the business address of each holder; and
(c) an address to which a request under regulation 23J or 23L may be sent to each holder; and
(d) the number of units held by each holder.
The trustees of a pooled superannuation trust must arrange:
(a) for the accounts and records for each year of income of the trust to be audited by an approved auditor; and
(b) for the auditor's report on the audit to be given to them not later than the day by which the return referred to in subsection 15B(1) of the Act in relation to that year of income is to be given to the Commissioner.
Where a standard prescribed by regulation 23C, 23D, 23E, 23F, 23G, 23H, 23J, 23K, 23L, 23M or 23N imposes a requirement applicable to the operation of a pooled superannuation trust, the governing rules of the trust must, on and after 30 June 1991, include the requirement.
23P(2) [Operation of Part]Nothing in subregulation (1) affects the operation of this Part.
In this Part, unless the contrary intention appears:
PJFC
, in relation to a superannuation fund, means an amount specified in a notice given to the fund by the Commissioner under subsection 15D(2) of the Act;
pre-1 July 88 funding amount
has the meaning given by regulation 23PB;
pre-1 July 88 funding credit balance
has the meaning given by subsection 275A(1) of the Tax Act;
prescribed event
has the meaning given by regulation 23PJ;
reviewable decision
means a decision of the Commissioner:
(a) not to approve an application under regulation 23PL or 23PM; or
(b) to revoke an approval under regulation 23PN; or
(c) after reconsideration under regulation 23PQ, to confirm or vary a decision referred to in paragraph (a) or (b);
shortfall-in-assets amount
means an amount determined by an actuary in accordance with regulation 23PC.
In this regulation:
late payment amount
, in relation to a superannuation fund, means an amount (other than an amount representing a contribution that was payable or not payable at the discretion of an employer-contributor in respect of the fund) representing contributions to the fund that were unpaid as at 30 June 1988, being contributions that an employer-contributor in respect of the fund was obliged as at 30 June 1988 to pay in accordance with:
(a) except if paragraph (b) applies, the governing rules of the fund then in force; or
(b) in the case of an amount representing contributions in respect of a member of a defined benefit superannuation fund who is an associate (within the meaning of Part IIIA of the Act) of an employer-contributor - the determination of an actuary; or
(c) a prescribed agreement or award. 23PB(2) [Deemed pre-1 July 1988 funding amounts]
Subject to subregulation (3), the following amounts are to be treated as pre-1 July 88 funding amounts for the purposes of paragraph 15D(2)(a) of the Act:
(a)a late payment amount;
(b) a shortfall-in-assets amount. 23PB(3) [Exclusion]
If the pre-1 July 88 funding amount of a defined benefit superannuation fund:
(a) includes a late payment amount; and
(b) that late payment amount is sufficient to fund the liabilities of the fund in relation to accrued benefits of the members of the fund;
the pre-1 July 88 funding amount must not include a shortfall-in-assets amount.
The shortfall-in-assets amount in respect of a superannuation fund is the amount determined by an actuary as the lesser of the amounts calculated in accordance with the following formulas:
(a)
| { | [value A of
accrued benefits |
− | actuarially determined
value of fund assets] |
× |
net market value of assets
actuarially determined value of fund assets |
}; |
(b)
| { value B of accrued benefits − net market value of assets }. |
Note:
A shortfall-in-assets amount is the amount of any deficiency in a superannuation fund as at 30 June 1988, other than a deficiency that is the result of contributions that are due, but have not been paid, to the fund.
23PC(2) [Definitions]In subregulation (1), in relation to a superannuation fund:
actuarially determined value of fund assets
means the value of the assets of the fund as at 30 June 1988, including any later payment amount, that is determined by an actuary using a method that the actuary certifies:
(a) is consistent with the method used in the last actuarial investigation of the fund that was completed before 25 May 1988; and
(b) as determining a value that is comparable to the value of the assets determined in that actuarial investigation;
net market value of fund assets
means the amount that, having regard to matters specified in regulation 23PD, could reasonably be estimated to be obtained from disposal of the assets of the fund, and includes any later payment amount;
value A of accrued benefits
has the meaning given by regulation 23PE;
value B of accrued benefits
has the meaning given by regulation 23PF.
For the purposes of this regulation:
(a) an alteration made after 25 May 1988 to the governing rules of a superannuation fund that relates to benefits payable to members of the fund is to be disregarded unless the alteration is a prescribed event; and
(b) in the case of the calculation of a shortfall-in-assets amount in respect of a member of a superannuation fund who is an associate (within the meaning of Part IIIA of the Act) of an employer, any amount of benefits in respect of the member that is attributable to the exercise of discretion by, or on behalf of, the trustees of the fund is to be disregarded.
For the purposes of the definition of net market value of fund assets in subregulation 23PC(2), the following matters are specified:
(a) the assumptions that, when the assets are sold:
(i) the buyer and seller of the assets are willing, but not anxious, to buy and sell the assets; and
(ii) there is a period in which to negotiate the sale that is reasonable, having regard to the nature and situation of the assets and the state of the market for assets of the same kind; and
(iii) the assets will be reasonably exposed to the market; and
(iv) no account is taken of the value or other advantage or benefit, additional to market value, to the buyer incidental to ownership of the assets;
(b) the value of any estate in the property comprising the assets that is not held by the trustees in the capacity of trustees;
(c) deduction of the costs of disposing of the assets from the proceeds of the disposal.
Value A of accrued benefits in relation to a superannuation fund is the total value of accrued benefits in respect of all members of the fund as at 30 June 1988 that is calculated in accordance with regulation 23PG.
23PE(2) [Assumptions]For the purposes of calculating value A of accrued benefits, the following assumptions apply:
(a) that a member of the superannuation fund will not die or become disabled before his or her normal retirement from the workforce;
(b) that the governing rules of the fund providing for benefits and the amounts of the benefits vested in members of the fund are those rules and amounts as at 25 May 1988;
(c) that the value of the accrued benefits in the fund in respect of a member of the fund is not less than the amount of benefits vested in the member on 30 June 1988;
(d) if the governing rules of the fund provide for adjustment of pension benefits to compensate for changes in the cost of living at the discretion of the trustees of the fund, that the rules providing for adjustment are disregarded, unless:
(i) all pension benefits have been increased under that rule on at least 3 occasions before 30 June 1988; and
23PE(3) [Actuarial investigation to be used]
(ii) at least 1 of those increases occurred in the period from the beginning of 1 July 1985 to the end of 30 June 1988.
Subject to this regulation, the elements of the actuarial basis for the calculation of value A of accrued benefits in respect of a superannuation fund are taken to be those used in the last actuarial investigation of the fund that was completed before 25 May 1988.
23PE(4) [Where there is no pre-25 May 1988 investigation]If an actuarial investigation of a superannuation fund was not completed before 25 May 1988, an actuary must submit to the Commissioner in writing the elements that the actuary proposes to use in respect of the fund:
(a) for the purposes of subregulation 23PG(2); and
(b) in substitution for the elements referred to in that subregulation. 23PE(5) [When Commissioner must approve proposed element]
The Commissioner must approve a proposed element of the actuarial basis for the calculation of value A of accrued benefits in respect of a superannuation fund if he or she is satisfied that the proposed element corresponds reasonably closely to the element that would have been used if an actuarial investigation had been made into the fund.
23PE(6) [When Commissioner has discretion]In special circumstances, the Commissioner may approve a proposed element of the actuarial basis for the calculation of value A of accrued benefits in respect of a superannuation fund if he or she is satisfied that application of the proposed element is reasonable in those circumstances.
23PE(7) [Special circumstance]Liability to pay taxation on income of the fund is not a special circumstance for the purposes of subregulation (6) if the liability results directly from an amendment of the Tax Act made by the Taxation Laws Amendment (Superannuation) Act 1989.
Value B of accrued benefits in relation to a superannuation fund is the total value of accrued benefits in respect of all members of the fund as at 30 June 1988 that is calculated in accordance with regulation 23PG.
23PF(2) [Assumptions]For the purposes of calculating value B of accrued benefits, the following assumptions apply:
(a) that a member of the superannuation fund will not:
(i) die, or become disabled, before his or her normal retirement from the workforce; or
(ii) withdraw from the fund, or retire from the workforce, before the age of his or her normal retirement;
(b) that the governing rules of the fund providing for benefits and the amounts of the benefits vested in the member are those rules and amounts as at 25 May 1988;
(c) that the value of the accrued benefits in the fund in respect of the member is not less than the amount of benefits vested in the member on 30 June 1988;
(d) that the annual earning rate of the fund, net of administrative or other costs, is 10%;
(e) that if the governing rules of the fund provide for adjustment of pension benefits to compensate for changes in the cost of living at the discretion of the trustees of the fund - the adjustment factor is the lesser of:
(i) the average annual percentage increase in pension benefits (if any) in the period from the beginning of 1 July 1985 to the end of 30 June 1988; and
(ii) 7% annually;
(f) if the governing rules of the fund provide for adjustment of benefits to compensate for changes in the cost of living, otherthan at the discretion of the trustees of the fund, that the adjustment factor is 7% annually;
(g) if the governing rules of the fund provide for adjustment of benefits in accordance with the amount or rate of salary of members of the fund, that the amount or rate increases by 8.5% annually;
(h) that the probability of survival of the member after his or her retirement from the workforce is ascertained in accordance with the Australian Life Tables 1985-1987 prepared by the Australian Government Actuary. 23PF(3) [Actuarial investigation to be used]
Subject to this regulation, the elements of the actuarial basis for the calculation of value B of accrued benefits in respect of a superannuation fund are taken to be those used in the last actuarial investigation of the fund that was completed before 25 May 1988.
23PF(4) [Proposal to substitute assumption or element]In special circumstances, an actuary may submit to the Commissioner in writing a proposal to substitute:
(a) an assumption stated in paragraph (2)(d), (e), (f), (g) or (h) in respect of a superannuation fund with another assumption; or
(b) an element referred to in subregulation (3) in respect of a superannuation fund with another element. 23PF(5) [Commissioner's discretion to approve]
The Commissioner may approve a proposed assumption or element mentioned in subregulation (4) if he or she is satisfied that application of that assumption or element would be reasonable in the circumstances.
23PF(6) [Special circumstance]Liability to pay taxation on income of the fund is not a special circumstance for the purposes of subregulation (4) if the liability results directly from an amendment of the Tax Act made by the Taxation Laws Amendment (Superannuation) Act 1989.
In this regulation, in relation to a period that exceeds a whole number of financial years, a reference to a part of a year is a reference to a part of the period that exceeds a whole financial year.
23PG(2) [Value of benefits payable]For the purposes of regulations 23PE and 23PF, the value of the benefits payable to a member in respect of a period after 30 June 1988 is the total of the amounts in respect of each financial year, or part of a financial year, in the period that are determined by an actuary:
(a) in respect of each kind of benefit that the member is, or may be, entitled to receive from the superannuation fund; and
(b) by using the following formula:
| P1 × Net present value × P2 |
where:
P1
is the probability, determined by the actuary, of the member being paid a benefit in each financial year, or part of a financial year; and
Net present value
is the value of each benefit to which the member may become entitled on exit from the fund, being an amount that is determined by the actuary as at 30 June 1988:
(i) in the case of the calculation of value A of accrued benefits - using the earning rate of the fund used in the actuarial investigation of the fund mentioned in subregulation 23PE(3); and
(ii) in the case of the calculation of value B of accrued benefits - using the earning rate of the fund referred to in paragraph 23PF(2)(d); and
P2
is a proportion that is calculated:
(i) in the case of the calculation of value A of accrued benefits - using the method applied in the actuarial investigation of the fund mentioned in subregulation 23PE(3); and
(ii) in the case of the calculation of value B of accrued benefits - as follows:
| completed period of fund membership
in relation to the member at 30 June 1988 completed period of fund membership in relation to the member at the member's date of exit from the fund |
where a reference to "completed period of fund membership" in relation to the member at a particular time is a reference to the period from the time at which the member joined, or last joined, the fund to the particular time.
For the purposes of paragraph 15D(3)(b) of the Act, the prescribed date is 30 June 1994.
For the purposes of subparagraph 15D(3)(d)(ii) of the Act, the following application fees are prescribed:
(a) if the application is for a PJFC that consists of a late payment amount or is the aggregate of late payment amounts - $300;
(b) subject to subregulation (2), if the application is for a PJFC that consists of a shortfall-in-assets amount or is the aggregate of shortfall-in-assets amounts, an amount calculated using the formula:
| 0.002 × the amount of the PJFC; |
(c) if an application is for a PJFC that includes:
(i) a late payment amount or the aggregate of late payment amounts; and
the fee prescribed in paragraph (b), as if the PJFC consisted of a shortfall-in-assets amount or the aggregate of shortfall-in-assets amounts. 23PI(2) [Limits]
(ii) a shortfall-in-assets amount or the aggregate of shortfall-in-assets amounts;
A fee under paragraph (1)(b) must not be:
(a) less than $500; or
(b) more than $5,000.
For the purposes of paragraph 15D(4)(a) of the Act, a prescribed event in relation to a superannuation fund is any alteration of the governing rules of the fund having the effect that calculation of a pre-1 July 88 funding amount under the rules as so altered produces an amount that is less than the amount calculated using the formula:
| (PJFC originally granted to the fund) | + | (any PJFCs transferred to the fund) | − | (any PJFCs transferred from the fund) |
A reference in subregulation (1) to a PJFC is a reference to the amount of the PJFC multiplied by the indexation factor calculated in accordance with subsection 159SG(2) of the Tax Act.
Subject to subregulation (3), if a prescribed event occurs in relation to a superannuation fund, the trustees of the fund must give notice in writing to the Commissioner of the event:
(a) within 3 months of the date of the occurrence; or
(b) on or before 30 June 1994;
whichever date is the later.
23PK(2) [Contents](a) a statement of an amount that is certified by an actuary as the amount by which the pre-1 July 88 funding credit balance of the fund is reduced as a result of the prescribed event; and
(b) a statement by the trustees of the fund that describes the prescribed event in sufficient detail to allow the statement to be properly considered. 23PK(3) [Extension]
The Commissioner may give notice in writing to the trustees of a superannuation fund extending the time in which the trustees must give notice to the Commissioner of a prescribed event.
If the trustees of a defined benefit superannuation fund propose to transfer a PJFC, or part of a PJFC, from the fund (in this regulation called "the transferor fund" ) to another superannuation fund (in this regulation called "the transferee fund" ), the trustees may apply in writing to the Commissioner to approve the transfer.
23PL(2) [Commissioner's discretion to approve]The Commissioner may approve an application only if:
(a) the requirements specified in regulation 23PO are satisfied; or
(b) if a requirement of that kind is not satisfied - the Commissioner is satisfied that, because of special circumstances, the requirement does not need to be satisfied. 23PL(3) [Amount to be transferred]
The amount of a PJFC to be transferred must not exceed the lesser of:
(a) the amount of the liability in respect of benefits to be transferred to the transferee fund, being benefits accrued before 1 July 1988; and
(b) the amount of any pre-1 July 88 funding credit balance in the transferor fund immediately before the transfer. 23PL(4) [Notice of approval]
As soon as practicable after a decision is made by the Commissioner to approve a transfer, he or she must give notice in writing of the approval to the trustees of the transferor fund and of the transferee fund.
The trustees of a superannuation fund (in this regulation called "the transferee fund" ) may apply in writing to the Commissioner to approve the transfer of a PJFC, or part of a PJFC, from a defined benefit superannuation fund (in this regulation called "the transferor fund" ), if:
(a) the application arises as a direct result of the transfer of a member or members of the transferor fund, and the benefit entitlements of that member or those members, to 1 or more transferee funds following reconstitution of the transferor fund into the transferee fund or transferee funds; or
(b) the application arises as a direct result of the transfer of a member or members of a transferor fund, and the benefit entitlements of that member or those members, to the transferee fund following the merger or 2 or more transferor funds into the transferee fund; or
(c) the transferee fund:
(i) was constituted on or after 1 July 1988; and
23PM(2) [Commissioner's discretion to approve]
(ii) assumed responsibility for the liabilities, but not all the assets, in respect of contributions for superannuation purposes relating to the employment of persons before that date, being contributions that were made to a transferor fund.
The Commissioner may approve an application only if:
(a) the requirements specified in regulation 23PO are satisfied; or
(b) if a requirement of that kind is not satisfied - the Commissioner is satisfied that, because of special circumstances, the requirement does not need to be satisfied. 23PM(3) [Amount to be transferred]
The amount of a PJFC to be transferred must not exceed the lesser of:
(a) the amount of the liability in respect of benefits to be transferred to the transferee fund, being benefits accrued before 1 July 1988; and
(b) the amount of any pre-1 July 88 funding credit balance in the transferor fund immediately before the transfer. 23PM(4) [Notice of approval]
As soon as practicable after a decision is made by the Commissioner to approve a transfer, he or she must give notice in writing of the approval to the trustees of the transferee fund and of the transferor fund.
The Commissioner may revoke an approval given under regulation 23PL or 23PM only if:
(a) information about matters relating to the application for approval that was not available to the Commissioner when he or she made the decision to approve the application becomes available to the Commissioner; and
(b) after considering that information, the Commissioner is satisfied that:
(i) a requirement specified in regulation 23PO (other than a requirement that does not need to be satisfied under paragraph 23PL(2)(b) or 23PM(2)(b)) was not satisfied in relation to the transfer; or
(ii) in the case of a requirement that, under paragraph 23PL(2)(b) or 23PM(2)(b), does not need to be satisfied - there were no special circumstances to justify the application of that paragraph.
The requirements referred to in paragraph 23PL(2)(a) and 23PM(2)(a) are that:
(a) an actuary certifies that the amount of the PJFC to be transferred is reasonable having regard to:
(i) the amount of unfunded liability to be transferred from the transferor fund; and
in relation to the amount of benefits that have accrued before 1 July 1988; and
(ii) the amount of the remaining unfunded liability of that fund;
(b) the trustees of the transferor fund have been given notice by the Commissioner of the grant of the PJFC under subsection 15D(2) of the Act; and
(c) at the date of the transfer the amount of the PJFC to be transferred is equal to or less than the amount of the pre-1 July 88 funding credit balance of the transferor fund; and
(d) the transferee fund has received notice from the Commissioner in relation to the year of income in which the transfer is to take place:
(i) under subsection 12(3) of the Act - that the Commissioner is satisfied that the fund satisfied the superannuation fund conditions in that year of income; or
(ii) under subsection 13(1) of the Act - that the Commissioner is satisfied that the fund should be treated as if the fund had satisfied the superannuation fund conditions in that year of income; and
(e) an actuary certifies that sufficient information is available about the accrued entitlements of members of the transferor fund as at 30 June 1988 to enable calculations to be made after that date to ascertain whether a prescribed event has occurred.
As soon as practicable after the Commissioner makes a reviewable decision, he or she must give written notice of the decision to the person at whose request the decision was made.
23PP(2) [Statement of reasons]The notice must have with it a statement by the Commissioner of his or her reasons for making the decision.
23PP(3) [Contents]The notice must include a statement to the effect that the trustees may:
(a) in the case of notice of a decision made by the Commissioner under regulation 23PL, 23PM or 23PN - if dissatisfied with the decision, request reconsideration of the decision under regulation 23PQ; and
(b) in the case of notice of a decision made by the Commissioner under regulation 23PQ confirming or varying a decision to which paragraph (a) applies - if dissatisfied with the decision, apply to the Administrative Appeals Tribunal for review of the decision so confirmed or varied. 23PP(4) [Effect of failure to comply]
Failure to comply with subregulation (3) in relation to a decision does not affect the validity of the decision.
If the trustees of a superannuation fund are dissatisfied with a decision made by the Commissioner under regulation 23PL, 23PM or 23PN, the trustees may give notice in writing to the Commissioner within:
(a) the period of 21 days after the day on which the trustees first receive notice of the decision; or
(b) such further period as the Commissioner reasonably allows;
requesting the Commissioner to reconsider the decision.
23PQ(2) [Reasons for request]The trustees must set out in the notice the reasons for the request.
23PQ(3) [Duty and discretion of Commissioner]Subject to subregulation (4), the Commissioner must reconsider the decision and may:
(a) confirm the decision; or
(b) vary or revoke the decision. 23PQ(4) [Deemed confirmation]
If the Commissioner does not confirm, vary or revoke the decision before the end of the period of 21 days after the day on which he or she received the request, the Commissioner is taken to have confirmed the decision under subregulation (3) at the end of that period.
23PQ(5) [Notice of variation or revocation]If the Commissioner varies or revokes a decision, he or she must give the Commissioner of Taxation written notice of the variation or revocation.
Application may be made to the Administrative Appeals Tribunal for review of a decision of the Commissioner to confirm or vary a decision under subregulation 23PQ(3), including a decision that is taken under subregulation 23PQ(4) to have been confirmed.
An actuary who makes a determination under this part must certify that the determination:
(a) is consistent with this Part; and
(b) except to the extent (if any) that this Part otherwise requires, is made in accordance with a method that The Institute of Actuaries of Australia would accept as a proper actuarial practice.
The trustees of a superannuation fund for which the Commissioner of Taxation has approved a 12 month period as a substituted accounting period for the purposes of section 18 of the Tax Act may treat a reference in this Part:
(a) to 30 June 1988 as a reference to the last day of the substituted accounting period corresponding to the year of income that ended on 30 June 1988; and
(b) to 1 July 1988 as a reference to the day after that day.
For the purposes of subsections 7(1), 8(1) and 8A(1) of the Act, the trustees of a superannuation fund, an approved deposit fund or a pooled superannuation trust must:
(a) keep records of the transactions, acts and operations of the fund or trust, as the case may be; and
(b) retain those records for at least 5 years after the end of the year of income in which the transactions, acts or operations occurred.
For the purposes of subparagraphs 12(1)(a)(ii), 14(1)(a)(ii) and 15B(1)(a)(ii) of the Act, a certificate by the trustees of a superannuation fund, an approved deposit fund or a pooled superannuation trust must be in accordance with Form 1.
24(2) [Superannuation fund auditor]For the purposes of subparagraph 12(1)(a)(iii) of the Act, a certificate by an approved auditor must be in accordance with Form 2.
24(2A) [Certificate incorporated in annual return]A certificate referred to in subregulation (2) that:
(a) is incorporated in the printed text of a form of annual return made available by the Commissioner; and
(b) as printed, does not contain the words "in accordance with the Australian Auditing Standards";
is effective, for all purposes, as if it included those words.
For the purposes of subparagraph 14(1)(a)(iii) of the Act, a certificate by an approved auditor must be in accordance with Form 3.
24(4) [PST auditor]For the purposes of subparagraph 15B(1)(a)(iii) of the Act, a certificate by an approved auditor must be in accordance with Form 4.
For the purposes of subparagraphs 12(1)(a)(iv), 14(1)(a)(iv) and 15B(1)(a)(iv) of the Act, the prescribed application fee is:
(a) in the case of a return in respect of a year of income ending on or before 30 June 1989 - $30; and
(b) in the case of a return in respect of the year of income ending on or after 30 June 1990 that is given to the Commissioner on or before 31 August 1990 - $30; and
(c) in the case of a return in respect of a year of income ending on or after 30 June 1990 that is not referred to in paragraph (b) - $40.
If a return for a year of income beginning before 1 July 1990 is lodged after 31 December 1991, the trustee lodging the return is liable to pay a late lodgment fee.
25A(2) [Amount]The late lodgment fee is the lesser of $200 and:
(a) if the return is in relation to a year of income commencing on 1 July 1986 or 1 July 1987 - $5 for each month or part of a month between 1 July 1989 and the day on which it is lodged; and
(b) in any other case - $5 for each month or part of a month between 1 July in the financial year beginning immediately after the return was due and the day on which it is lodged. 25A(3) [When fee payable]
A late lodgment fee is payable when the return is lodged.
25A(4) [Return]In this regulation "return" means a return referred to in subparagraph 12(1)(b)(ii), 14(1)(b)(ii) or 15B(1)(b)(ii) of the Act as in force immediately before the commencement of the Occupational Superannuation Laws Amendment Act 1991.
Payment of tax by the trustees of a superannuation fund or of an approved deposit fund does not affect the compliance by the trustees with standards prescribed by these Regulations.
(subregulation 24(1))
FORM 1 - CERTIFICATE BY TRUSTEES
The trustee(s) of (name of superannuation fund, approved deposit fund or pooled superannuation trust) hereby certify that the particulars contained in this return*/the return for the year of income (insert year)* are correct and that, with the exception(s) mentioned in the return, the fund*/trust* satisfied the superannuation fund conditions*/the approved deposit fund conditions*/the pooled superannuation trust conditions* applicable to the fund*/trust* in relation to the year of income specified in the return.
(Signature of sole trustee or authorised trustee(s)*)
Date:
*Delete as appropriate
FORM 2 - CERTIFICATE BY APPROVED AUDITOR - SUPERANNUATION FUNDS
I*/We* certify that I*/we* have audited the accounts and records of (name of superannuation fund) for the year of income ended (insert date) in accordance with the Australian Auditing Standards. In my*/our* opinion, the information provided by the trustee(s) in the return of the fund for that year of income is consistent with that contained in those audited accounts and records in respect of which I*/we* made an unqualified audit report*/an audit report containing the following qualification(s):*
(insert qualifications contained in the audit report)
My*/Our* audit included tests to determine whether the fund complied with the standards prescribed by regulations (specify the regulations prescribing the standards to which the tests relate) of the Occupational Superannuation Standards Regulations. Those tests did not provide any evidence to suggest that the fund did not comply with those standards at all times during that year of income, subject to the following qualification(s):*
(give details of any evidence suggesting that the fund did not comply, or may not have complied, with the standards referred to)
(Signature of approved auditor(s))
Date: .
(Print name and address of approved auditor(s))
*Delete as appropriate
FORM 3 - CERTIFICATE BY APPROVED AUDITOR - APPROVED DEPOSIT FUNDS
I*/We* certify that I*/we* have audited the accounts and records of (name of approved deposit fund) for the year of income ended (insert date) in accordance with the Australian Auditing Standards. In my*/our* opinion, the information provided by the trustee(s) in the return of the fund for that year of income is consistent with that contained in those audited accounts and records in respect of which I*/we* made an unqualified audit report*/an audit report containing the following qualification(s):*
(insert qualifications contained in the audit report)
My*/Our* audit included tests to determine whether the fund complied with the standards prescribed by regulations (specify the regulations prescribing the standards to which the tests relate) of the Occupational Superannuation Standards Regulations. Those tests did not provide any evidence to suggest that the fund did not comply with those standards at all times during that year of income, subject to the following qualification(s):*
(give details of any evidence suggesting that the fund did not comply, or may not have complied, with the standards referred to)
I*/We* further certify that at all times during that year of income:
(Signature of approved auditor(s))
Date: .
(Print name and address of approved auditor(s))
*Delete as appropriate
FORM 4 - CERTIFICATE BY APPROVED AUDITOR - POOLED SUPERANNUATION TRUSTS
(subregulation 24(4))
I*/We* certify that I*/we* have audited the accounts and records of (name of pooled superannuation trust) for the year of income ended (insert date) in accordance with the Australian Auditing Standards. In my*/our* opinion, the information provided by the trustee(s) in the return of the trust for that year of income is consistent with that contained in those audited accounts and records in respect of which I*/we* made an unqualified audit report*/an audit report containing the following qualification(s):*
(insert qualifications contained in the audit report)
My*/Our* audit included tests to determine whether the trust was a unit trust to which the definition of pooled superannuation trust in subsection 3(1) of the Occupational Superannuation Standards Act 1987 applies and whether the trust complied with the standards prescribed by regulations (specify the regulations prescribing the standards to which the tests relate) of the Occupational Superannuation Standards Regulations. Those tests did not provide any evidence to suggest that the trust was not a pooled superannuation trust or that the trust did not comply with those standards at all times during that year of income, subject to the following qualification(s):*
(give details of any evidence suggesting that the trust was not, or may not have been, a pooled superannuation trust or that the trust did not comply, or may not have complied, with the standards referred to)
(Signature of approved auditor(s))
Date: .
(Print name and address of approved auditor(s))
*Delete as appropriate
(subregulations 3E(4) and 3F(4))
CLAUSE 1 1Subject to clauses 3 and 4, the maximum limits mentioned in paragraph 3E(4)(f) or 3F(4)(e) are determined under the formula:
|
AB
PVF |
where:
AB
means the amount of the annuity account balance, or pension account balance, as the case requires:
(a) on 1 July in the financial year in which the payments are made; or
(b) if that year is the year in which the annuity payments, or pension payments, commence - on the commencement day; and
PVF
means the maximum pension valuation factor set out in Column 3 in Schedule 1A in relation to the item in the Schedule that represents the age of the beneficiary on:
(a) 1 July in the financial year in which the payments are made; or
(b) if that is the year in which the annuity payments, or pension payments, commence - the commencement day. CLAUSE 2 2
Subject to clauses 3 and 4, the minimum limits mentioned in paragraph 3E(4)(f) or 3F(4)(e) are determined under the formula:
|
AB
PVF |
where:
AB
means the amount of the annuity account balance, or pension account balance, as the case requires:
(a) on 1 July in the financial year in which the payments are made; or
(b) if that year is the year in which the annuity payments, or pension payments, commence - on the commencement day; and
PVF
means the minimum pension valuation factor set out in Column 4 in Schedule 1A in relation to the item in the Schedule that represents the age of the beneficiary on:
(a) 1 July in the financial year in which the payments are made; or
(b) if that is the year in which the annuity payments, or pension payments, commence - the commencement day. CLAUSE 3 3
For a calculation of the maximum or minimum limit in the year in which the commencement day of the pension or annuity occurs if that day is a day other than 1 July, the appropriate value set out in Column 3 or Column 4 must be applied proportionally to the number of days in the financial year that include and follow the commencement day. CLAUSE 4 4
An amount determined under the formula that is not evenly divisible by 10 is to be rounded to the nearest amount that is so divisible.
|
Column 1
Item |
Column 2
Age of Beneficiary |
Column 3
Maximum Pension Valuation Factor |
Column 4
Minimum Pension Valuation Factor |
| 1 | 20 or less | 10 | 28.6 |
| 2 | 21 | 10 | 28.5 |
| 3 | 22 | 10 | 28.3 |
| 4 | 23 | 10 | 28.1 |
| 5 | 24 | 10 | 28.0 |
| 6 | 25 | 10 | 27.8 |
| 7 | 26 | 10 | 27.6 |
| 8 | 27 | 10 | 27.5 |
| 9 | 28 | 10 | 27.3 |
| 10 | 29 | 10 | 27.1 |
| 11 | 30 | 10 | 26.9 |
| 12 | 31 | 10 | 26.7 |
| 13 | 32 | 10 | 26.5 |
| 14 | 33 | 10 | 26.3 |
| 15 | 34 | 10 | 26.0 |
| 16 | 35 | 10 | 25.8 |
| 17 | 36 | 10 | 25.6 |
| 18 | 37 | 10 | 25.3 |
| 19 | 38 | 10 | 25.1 |
| 20 | 39 | 10 | 24.8 |
| 21 | 40 | 10 | 24.6 |
| 22 | 41 | 10 | 24.3 |
| 23 | 42 | 10 | 24.0 |
| 24 | 43 | 10 | 23.7 |
| 25 | 44 | 10 | 23.4 |
| 26 | 45 | 10 | 23.1 |
| 27 | 46 | 10 | 22.8 |
| 28 | 47 | 10 | 22.5 |
| 29 | 48 | 10 | 22.2 |
| 30 | 49 | 10 | 21.9 |
| 31 | 50 | 9.9 | 21.5 |
| 32 | 51 | 9.9 | 21.2 |
| 33 | 52 | 9.8 | 20.9 |
| 34 | 53 | 9.7 | 20.5 |
| 35 | 54 | 9.7 | 20.1 |
| 36 | 55 | 9.6 | 19.8 |
| 37 | 56 | 9.5 | 19.4 |
| 38 | 57 | 9.4 | 19.0 |
| 39 | 58 | 9.3 | 18.6 |
| 40 | 59 | 9.1 | 18.2 |
| 41 | 60 | 9.0 | 17.8 |
| 42 | 61 | 8.9 | 17.4 |
| 43 | 62 | 8.7 | 17.0 |
| 44 | 63 | 8.5 | 16.6 |
| 45 | 64 | 8.3 | 16.2 |
| 46 | 65 | 8.1 | 15.7 |
| 47 | 66 | 7.9 | 15.3 |
| 48 | 67 | 7.6 | 14.9 |
| 49 | 68 | 7.3 | 14.4 |
| 50 | 69 | 7.0 | 14.0 |
| 51 | 70 | 6.6 | 13.5 |
| 52 | 71 | 6.2 | 13.1 |
| 53 | 72 | 5.8 | 12.6 |
| 54 | 73 | 5.4 | 12.2 |
| 55 | 74 | 4.8 | 11.7 |
| 56 | 75 | 4.3 | 11.3 |
| 57 | 76 | 3.7 | 10.8 |
| 58 | 77 | 3.0 | 10.4 |
| 59 | 78 | 2.2 | 10.0 |
| 60 | 79 | 1.4 | 9.5 |
| 61 | 80 | 0 | 9.1 |
| 62 | 81 | 0 | 8.7 |
| 63 | 82 | 0 | 8.3 |
| 64 | 83 | 0 | 7.9 |
| 65 | 84 | 0 | 7.5 |
| 66 | 85 | 0 | 7.1 |
| 67 | 86 | 0 | 6.8 |
| 68 | 87 | 0 | 6.4 |
| 69 | 88 | 0 | 6.1 |
| 70 | 89 | 0 | 5.8 |
| 71 | 90 | 0 | 5.5 |
| 72 | 91 | 0 | 5.3 |
| 73 | 92 | 0 | 5.0 |
| 74 | 93 | 0 | 4.8 |
| 75 | 94 | 0 | 4.6 |
| 76 | 95 | 0 | 4.4 |
| 77 | 96 | 0 | 4.2 |
| 78 | 97 | 0 | 4.0 |
| 79 | 98 | 0 | 3.8 |
| 80 | 99 | 0 | 3.7 |
| 81 | 100 or more | 0 | 3.5 |
EXAMPLE
Ms Johnson, who turns 60 on 5 September 1993, invests $100,000 in an allocated pension fund on 1 October 1993. The date of the first payment to Ms Johnson is 1 January 1994.
Assume a fund earning rate of 7%.
1993/94: The maximum and minimum payments for 1993/94 are based on:
(a) the account balance on the day of purchase; and (b) the beneficiary's age of 60 on the day of purchase:
$100,000
9.0× 273
365= $8,310.50 (maximum limit, rounded to $8,310)
$100,000
17.8× 273
365= $4,201.93 (minimum limit, rounded to $4,200) Assume total payments to Ms Johnson at 30 June 1994 are $6,000.
1994/95: The maximum and minimum payments for the year 1994/95 are based on:
(a) the account balance on 1 July 1994 which is $99,145 (residue $94,000 + interest of $5,145); and (b) the beneficiary's age of 60 on 1 July 1994:
$99,145
9.0= $11,016.11 (maximum limit, rounded to $11,020)
$99,145
17.8= $5,569.94 (minimum limit, rounded to $5,570)
(regulation 4A)
CLAUSE 1 INTERPRETATION 1(1)In this Schedule:
account balance
, in relation to a member of a superannuation fund, means amounts allocated to the member under the governing rules of the fund, and includes:
(a) amounts that have not vested in the member; and
(b) if the fund is sponsored by the employer of the member:
(i) any amount paid by the employer in accordance with a prescribed agreement or award; and
(ii) the amount of the net earnings of the fund in respect of an amount referred to in subparagraph (i);
converted pension multiple
in relation to a superannuation pension that could become payable under the governing rules of the fund as at:
(a) 25 May 1988; or
(b) the day when the fund was constituted (if the fund was constituted after 25 May 1988 but before 1 July 1990);
means the number worked out by multiplying the multiple applicable to the pension under the governing rules of the superannuation fund concerned by the pension valuation factor applicable to the pension under Schedule 3 as at the retirement age applicable to the fund;
defined benefit
means a benefit defined in terms of, or in terms that include, either or both of the following amounts:
(a) the amount of the relevant person's salary:
(i) at the date of the person's retirement from the workforce; or
(ii) on a day before that date; or
(iii) averaged over a period of employment before retirement;
(b) a specified amount;
lump sum fund
means a superannuation fund that is prohibited under its rules from:
(a) providing pensions; and
(b) rolling-over amounts to purchase annuities on behalf of members;
maximum fund multiple
, in relation to a person who is a member of a defined benefit superannuation fund, means the multiple that is the greatest of the following:
(a) the greatest lump sum multiple; or
(b) the greatest converted pension multiple; or
(c) the greatest combination of a lump sum multiple and a converted pension multiple;
that could have been applicable to the person at any time up to the retirement age of the fund under the governing rules of the fund as at:
(d) 25 May 1988; or
(e) the day when the fund was constituted (if the fund was constituted after 25 May 1988 but before 1 July 1990);
member
in relation to a superannuation fund, includes a person who has deferred any of his or her benefits in the fund;
private sector fund
means a superannuation fund:
(a) to which section 23F of the Tax Act would have applied on:
(i) 25 May 1988; or
(ii) the day when the fund was constituted (if the fund was constituted after 25 May 1988 but before 1 July 1990);
if that section has not been repealed; and
(b) that the Commission or the Commissioner of Taxation had approved in writing to provide benefits for a person in excess of the reasonable benefit limits that were current as at 25 May 1988;
public sector superannuation fund
has the meaning it would have under regulation 3 if "superannuation fund" in that regulation had the meaning given by section 15E of the Act;
retirement age
in relation to a person to whom a benefit is, or commences to be, paid means:
(a) in the case of a defined benefit:
(i) if the governing rules of the superannuation fund as at:
(A) 25 May 1988; orspecified a maximum retirement age - that age; or
(B) the day when the fund was constituted (if the fund was constituted after 25 May 1988 but before 1 July 1990);
(ii) where that defined benefit is based on a period of service:
(A) if the fund is not a lump sum fund - the age of the member at which the highest value is obtained by multiplying the pension multiple applicable to him or her under those rules on the relevant date under subparagraph (i) by the relevant pension valuation factor; or
(B) if the fund is a lump sum fund - the age of the member at which the greatest lump sum multiple is so applicable; or
(C) if the fund is not a lump sum fund but does not provide pension benefits - the age of the member at which the greatest lump sum multiple is so applicable; and
(b) in the case of a benefit that is not a defined benefit:
(i) if the governing rules of the superannuation fund as at:
(A) 25 May 1988; orspecified a maximum retiring age - that age; or
(B) the day when the fund was constituted (if the fund was constituted after 25 May 1988 but before 1 July 1990);
(ii) 65 years;
salary
, in relation to a member of a superannuation fund, means any amount that is treated as salary of the member under the rules of the fund.
1(2)
In this Schedule, unless the contrary intention appears, an expression has the same meaning as in subregulation 4A(1).
CLAUSE 2 2 BASE OLD RBM
Subject to the succeeding provisions of this Schedule, the old RBM applicable to a person in relation to a benefit paid, or commencing to be paid, to the person is:
(a) if the benefit is to be assessed against the lump sum RBL - 7; or
(b) if the benefit is to be assessed against the pension RBL - 11.25. CLAUSE 3 WHEN GREATER OLD RBM APPLICABLE 3(1)
An old RBM greater than the old RBM specified in clause 2 may be applicable to a person in relation to a benefit paid, or commencing to be paid, to the person by a public sector superannuation fund or a private sector fund if the person was a member of the fund on 30 June 1990.
3(2)
An old RBM greater than the old RBM specified in clause 2 may also be applicable to a person in relation to a benefit paid, or commencing to be paid, to the person if:
(a) the benefit:
(i) is payable by an approved deposit fund, a life assurance company, a registered organisation or a superannuation fund; and
(ii) consists, in whole or in part, of an ETP rolled-over from a public sector superannuation fund or a private sector fund (in this clause called the "original fund" ); and
(b) the whole of the ETP, other than any part that consisted of undeducted contributions or concessional components, from the original fund was rolled-over; and
(c) the person was a member of the original fund on 30 June 1990 or ceased to be such a member after 15 February 1990 and before 1 July 1990.
3(3)
(Omitted by SR No 148 of 1991)
CLAUSE 4 4 OLD RBM - DEFINED BENEFITS
The old RBM applicable to a person in relation to:
(a) a defined benefit payable by a defined benefit superannuation fund to which subclause 3(1) applies; or
(b) a benefit payable by an approved deposit fund, a life assurance company, a registered organisation or a superannuation fund to which subclause 3(2) applies where the benefit paid by the original fund referred to in that subclause was a defined benefit;
is:
(c) the person's maximum fund multiple:
(i) as at 30 June 1990; or
(ii) if a higher maximum fund multiple was applicable to the person as at an earlier date - as at the earlier date; or
(d) the base old RBM;
whichever is the greater.
The old RBM applicable to a person in relation to a benefit payable by:
(a) a superannuation fund to which subclause 3(1) or (3) applies, being a fund that only provides benefits that are not defined benefits; or
(b) an approved deposit fund, a life assurance company, a registered organisation or a superannuation fund to which subclause 3(2) applies where the original fund referred to in that subclause only provided benefits that are not defined benefits;
is:
(c) the multiple calculated under clause 6 or clause 7; or
(d) the base old RBM;
whichever is the greater.
5(2)
Such a fund must calculate the old RBM for all of its members under either clause 6 or clause 7.
CLAUSE 6 CALCULATION METHOD 1 - NON-DEFINED BENEFITS 6(1)
Subject to subclause (2), the calculation is to be made in relation to a person using the formula:
| 1.08 × [P × 1.0185 × |
(1.0185n − 1)]
0.0185 |
+ (1.08 × Q × 1.0185n); |
where:
(a) in the case of a person who is a member of the fund as a result of having deferred any of his or her benefits in that fund - 0; or
(b) in any other case - the total proportion of the person's salary (expressed as a decimal number) that was:
(i) contributed to the fund during the financial year ending on 30 June 1990 (including any employer contributions); or
(ii) the highest proportion contributed to the fund during any earlier financial year (including any employer contributions);
whichever is the higher, and includes any amount paid by the employer in accordance with a prescribed agreement or award; and
Q
means the number worked out:
(a) if that person:
(i) was a member of the fund on 1 July 1990; and
by dividing the person's account balance on 1 July 1990 by an amount obtained by:
(ii) had deferred any of his or her benefits in the fund before 1 July 1990;
(iii) multiplying the person's salary on the date of deferral by the index number for the June quarter of the financial year that began on 1 July 1989; and
(iv) dividing the product of that multiplication by the index number for the March quarter of the financial year in which the benefits were deferred; or
(b) if the person ceased to be a member of the fund before 1 July 1990 - by dividing the person's account balance on the day when his or her membership ceased by his or her salary on the day when he or she ceased to be a member; or
(c) in any other case - by dividing the person's account balance on 1 July 1990 by his or her salary on that day; and
n
means the number of years in the period:
(a) beginning:
(i) if the person ceased to be amember of a superannuation fund before 1 July 1990 - on the day when that person ceased to be a member of the fund; or
(ii) in any other case - on 30 June 1990; and
(b) ending at the end of the day when the person reaches the age that is his or her retirement age for the purposes of the fund;
counting part of a year as a whole year.
6(2)
If the governing rules of a superannuation fund of which a person is a member require the contributions to the fund in respect of the person to increase after 30 June 1990, the calculation is to be made in relation to that person by:
(a) adding together the amounts worked out, in accordance with subclause (3), in relation to the person separately in respect of each year from 1 July 1990 to the day on which he or she reaches the age that is his or her retirement age, counting part of a year as a whole year; and
(b) adding to the amounts referred to in paragraph (a) the amount specified in subregulation (4).
6(3)
The amount referred to in paragraph (2)(a) to be worked out in relation to a person in respect of a year (in this subclause called "relevant year" ) is the amount worked out using the formula:
| 1.08 × P × 1.0185n+1-i |
where:
P
means the proportion (expressed as a decimal number) of the amount of the salary of the person, being an amount that is assumed to increase by 8% on each 1 July after 1 July 1990, that would be required to be contributed to the fund under the rules in respect of the relevant year; and
(a) the number of years in the period that:
(i) began on 1 July 1990; and
(ii) ended at the end of the relevant year; or
(b) n ;
whichever is the lower number; and
n
has the same meaning as in subclause (1).
6(4)
The amount referred to in paragraph (2)(b) is an amount worked out using the formula:
| 1.08 × Q × 1.0185n |
where Q and n have the same respective meanings as in subclause (1).
CLAUSE 7 7 CALCULATION METHOD 2 - NON-DEFINED BENEFITS
The calculation is to be made in relation to a person using the formula:
| (Q × Asset Factor) + (P × Contribution Factor × 100) |
where:
Q
has the same meaning as in clause 6; and
Asset Factor
means the relevant factor ascertained using the table to this clause; and
P
has the same meaning as in clause 6; and
Contribution factor
means the relevant factor ascertained using the table to this clause.
| Years to retirement | Asset factor | Contribution Factor |
| 50 | 2.703 | 0.893 |
| 49 | 2.654 | 0.866 |
| 48 | 2.606 | 0.839 |
| 47 | 2.558 | 0.813 |
| 46 | 2.512 | 0.788 |
| 45 | 2.466 | 0.762 |
| 44 | 2.421 | 0.738 |
| 43 | 2.377 | 0.714 |
| 42 | 2.334 | 0.690 |
| 41 | 2.292 | 0.666 |
| 40 | 2.250 | 0.643 |
| 39 | 2.209 | 0.621 |
| 38 | 2.169 | 0.599 |
| 37 | 2.129 | 0.577 |
| 36 | 2.091 | 0.556 |
| 35 | 2.053 | 0.535 |
| 34 | 2.015 | 0.514 |
| 33 | 1.979 | 0.494 |
| 32 | 1.943 | 0.475 |
| 31 | 1.907 | 0.455 |
| 30 | 1.873 | 0.436 |
| 29 | 1.839 | 0.417 |
| 28 | 1.805 | 0.399 |
| 27 | 1.772 | 0.381 |
| 26 | 1.740 | 0.363 |
| 25 | 1.709 | 0.346 |
| 24 | 1.678 | 0.329 |
| 23 | 1.647 | 0.312 |
| 22 | 1.617 | 0.295 |
| 21 | 1.588 | 0.279 |
| 20 | 1.559 | 0.263 |
| 19 | 1.531 | 0.248 |
| 18 | 1.503 | 0.232 |
| 17 | 1.475 | 0.217 |
| 16 | 1.449 | 0.203 |
| 15 | 1.422 | 0.188 |
| 14 | 1.396 | 0.174 |
| 13 | 1.371 | 0.160 |
| 12 | 1.346 | 0.146 |
| 11 | 1.322 | 0.133 |
| 10 | 1.298 | 0.120 |
| 9 | 1.274 | 0.107 |
| 8 | 1.251 | 0.094 |
| 7 | 1.228 | 0.081 |
| 6 | 1.206 | 0.069 |
| 5 | 1.184 | 0.057 |
| 4 | 1.162 | 0.045 |
| 3 | 1.141 | 0.034 |
| 2 | 1.120 | 0.022 |
| 1 | 1.100 | 0.011 |
Note 1:
The years to retirement of a person is the number of years from 30 June 1990 until the day on which the person will reach the retirement age of the fund.
Note 2:
Where the number of years to retirement of the person includes a part of a year, the factor to be obtained using the table is the factor applicable to the next higher year.
CLAUSE 8 8 MIXED BENEFITSIf a defined benefit superannuation fund could have provided a combination of defined benefits and other benefits to a person under the governing rules of the fund, as at:
(a) 25 May 1988; or
(b) the day when the fund was constituted (if the fund was constituted after 25 May 1988 but before 1 July 1990);
the old RBM applicable to a person to whom a benefit is paid, or commences to be paid, by the fund is:
(c) the sum of:
(i) the person's maximum fund multiple; and
(ii) the multiple that would be calculated under clause 6 or 7; or
(d) the greater of the numbers calculated under clauses 4 and 5;
whichever is the greater.
If:
(a) either:
(i) an ETP is paid to a person out of a private sector fund or a public sector superannuation fund before the person turns 55; or
(ii) a superannuation pension or annuity that does not meet the pension or annuity standards commences to be paid to a person out of a private sector fund or a public sector superannuation fund and the commencement day of the pension or annuity occurs before the person turns 55; and
(b) the age at which the person may retire under the rules of that fund is less than 55;
the old RBM of the person is the number worked out using the formula:
|
A
1 − (0.025 × B) |
where:
A
is the number that would have been the old RBM of the person under this Schedule if this clause did not apply; and
B
is the number of whole years between the age at which the person may retire under the rules of that fund and 55 years.
CLAUSE 10 10 CONVERSION TO MULTIPLE OF HAS
If a fund specifies benefits payable to a member in terms of the member's final salary or in similar terms, the multiple of salary is, for the purposes of this Schedule, to be converted into a multiple of the person's HAS using the formula:
| M × 1.081.5−K |
where:
K
is the number of years used under the governing rules of the fund from the midpoint of the averaging period for calculating the multiple of salary until the end of that period;
M
is the multiple of salary used under those rules.
In this Schedule, unless the contrary intention appears, an expression has the same meaning as in subregulation 4A(1).
The pension valuation factor for a pension that is to be indexed at a rate that is greater than 8% each year is to be calculated in accordance with arrangements determined in writing by the Commissioner. CLAUSE 2 2
The pension valuation factor for any other pension is the factor applicable to the pension under the following tables. CLAUSE 3 3
A reference in the tables to "Age" is a reference to the age of the recipient on the commencement day of the relevant pension. If the age of a person on that day falls between 2 of the ages specified in a table, the pension valuation factor is to be determined by reference to the factors specified under the next greater age group in the table. CLAUSE 4 4
If a pension has no reversion, the pension valuation factor for the pension is to be the relevant factor specified in the relevant table in the "Below 50%" group. CLAUSE 5 5
If the rules of a superannuation fund provide that a pension is indexed to movements in salary, the pension valuation factor for the pension is the relevant factor specified in the table relating to an indexation rate of 8%. CLAUSE 6 6
If a pension is indexed by reference to movements in a price index published by the Australian Statistician, the pension valuation factor for the pension is the relevant factor applicable under the table into which the standard indexation rate falls.
Subject to clause 8, if the governing rules of a superannuation fund provide for a pension to be indexed at the discretion of the trustees of the fund, the pension valuation factor is to be determined as if the indexation rate were a rate worked out by:
(a) adding together the indexation rates determined by the trustees for pensions of same kind as that pension in respect of each year in the period of 5 years of which the year of income in which the pension commences to be paid is the last year; and
(b) dividing the result by 5.
If a superannuation fund to which clause 7 applies has been in existence, or making pension payments, for less than a continuous period of 5 years, the pension valuation factor is to be the relevant factor specified in the table that relates to the standard indexation rate.
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 33 | 31 | 29 | 27 | 25 | 23 | 21 | 18 | 16 | 14 | 12 | 10 | 9 | 9 |
| 50% − 75% | 34 | 33 | 31 | 29 | 27 | 25 | 22 | 20 | 18 | 15 | 13 | 11 | 10 | 9 |
| Above 75% | 35 | 34 | 32 | 30 | 28 | 26 | 24 | 21 | 19 | 16 | 14 | 12 | 10 | 10 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 26 | 25 | 24 | 23 | 21 | 20 | 18 | 16 | 14 | 13 | 11 | 10 | 9 | 8 |
| 50% − 75% | 27 | 26 | 25 | 24 | 23 | 21 | 19 | 18 | 16 | 14 | 12 | 10 | 9 | 9 |
| Above 75% | 28 | 27 | 26 | 25 | 24 | 22 | 20 | 19 | 17 | 15 | 13 | 11 | 10 | 9 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 22 | 21 | 20 | 19 | 18 | 17 | 16 | 14 | 13 | 12 | 10 | 9 | 8 | 8 |
| 50% − 75% | 22 | 22 | 21 | 20 | 19 | 18 | 17 | 16 | 14 | 13 | 11 | 10 | 9 | 8 |
| Above 75% | 23 | 22 | 22 | 21 | 20 | 19 | 18 | 16 | 15 | 13 | 12 | 10 | 9 | 8 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 18 | 18 | 17 | 17 | 16 | 15 | 14 | 13 | 12 | 11 | 10 | 9 | 8 | 8 |
| 50% − 75% | 19 | 18 | 18 | 17 | 17 | 16 | 15 | 14 | 13 | 12 | 10 | 9 | 8 | 8 |
| Above 75% | 19 | 29 | 18 | 18 | 17 | 17 | 16 | 15 | 13 | 12 | 11 | 9 | 8 | 8 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 16 | 15 | 15 | 15 | 14 | 13 | 13 | 12 | 11 | 10 | 9 | 8 | 8 | 7 |
| 50% − 75% | 16 | 16 | 15 | 15 | 15 | 14 | 13 | 13 | 12 | 11 | 10 | 9 | 8 | 7 |
| Above 75% | 16 | 16 | 16 | 15 | 15 | 15 | 14 | 13 | 12 | 11 | 10 | 9 | 8 | 7 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 14 | 14 | 13 | 13 | 13 | 12 | 11 | 11 | 10 | 9 | 8 | 8 | 7 | 7 |
| 50% − 75% | 14 | 14 | 14 | 13 | 13 | 13 | 12 | 11 | 11 | 10 | 9 | 8 | 7 | 7 |
| Above 75% | 14 | 14 | 14 | 14 | 13 | 13 | 12 | 12 | 11 | 10 | 9 | 8 | 8 | 7 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 12 | 12 | 12 | 12 | 11 | 11 | 10 | 10 | 9 | 9 | 8 | 7 | 7 | 7 |
| 50% − 75% | 12 | 12 | 12 | 12 | 12 | 11 | 11 | 10 | 10 | 9 | 8 | 8 | 7 | 7 |
| Above 75% | 12 | 12 | 12 | 12 | 12 | 12 | 11 | 11 | 10 | 9 | 9 | 8 | 7 | 7 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 11 | 11 | 11 | 11 | 10 | 10 | 10 | 10 | 9 | 8 | 7 | 7 | 7 | 6 |
| 50% − 75% | 11 | 11 | 11 | 11 | 11 | 10 | 10 | 10 | 9 | 8 | 8 | 7 | 7 | 6 |
| Above 75% | 11 | 11 | 11 | 11 | 11 | 10 | 10 | 10 | 9 | 9 | 8 | 7 | 7 | 6 |
| Reversion | Age next birthday of recipient on commencement day of pension | |||||||||||||
| 20 or less | 21 to 25 | 26 to 30 | 31 to 35 | 36 to 40 | 41 to 45 | 46 to 50 | 51 to 55 | 56 to 60 | 61 to 65 | 66 to 70 | 71 to 75 | 76 to 80 | 81 or more | |
| Below 50% | 10 | 10 | 10 | 10 | 9 | 9 | 9 | 8 | 8 | 8 | 7 | 7 | 6 | 6 |
| 50% − 75% | 10 | 10 | 10 | 10 | 10 | 9 | 9 | 9 | 8 | 8 | 7 | 7 | 6 | 6 |
| Above 75% | 10 | 10 | 10 | 10 | 10 | 10 | 9 | 9 | 9 | 8 | 8 | 7 | 7 | 6 |
(regulation 4F)
Fund, company or organisation information
Name of the fund, company or organisation
Postal address of the fund, company or organisation
Tax file number of the fund, company or organisation
Recipient information
Name of the person with an amount in the fund, company or organisation on 15 February 1990
Postal address of the person with an amount in the fund, company or organisation on 15 February 1990
Tax file number of the person with an amount in the fund, company or organisation on 15 February 1990
Date of birth of the person with an amount in the fund, company or organisation on 15 February 1990
Fund balance
Balance in the fund, company or organisation on 15 February 1990 with respect to the person.
(subsections 15G(1) and (3) and 15J(2) of the Act
regulation 4G and subregulation 4J(3))
Recipient information
Name of the person who received the benefit
Address of the person who received the benefit
Tax file number of the person who received the benefit
Date of birth of the person who received the benefit
If the benefit is payable by an employer, whether the person is an associate of the employer.
Fund information
Payer's Name
Address of the payer
Whether the payer is a superannuation fund, life assurance company or registered organisation or an employer of the recipient
ETPs
Date on which the ETP was made
Start date of the eligible service period to which the ETP relates
Amount of the ETP
Pre-July 83 component
Untaxed element of the post-June 83 component
Taxed element of the post-June 83 component
Concessional component
Undeducted contributions
Non-qualifying component
Where the benefit is a result of the commutation or residual capital value of an earlier benefit:
Superannuation pensions
The commencement day of the pension
Commencement of the eligible service period to which the pension relates
The annual value of the pension
Undeducted purchase price
Whether the pension is paid as a result of the permanent disability of the person
Whether the pension has a residual capital value
The amount of any residual capital value
Where the payer is a superannuation fund (the rules of which, at 15 August 1989, allowed the provision of a pension for the person the capital value of which exceeded 11.25 times any amount treated as salary under those rules) - whether the person was a member of that fund as at 15 August 1989
Benefits approved as pensions under paragraph (b)(ii) of the definition of superannuation pension in subsection 15E(1) of the Act
The information that the Commissioner reasonably requests in writing that a payer should provide, being information:
Annuities
Commencement day of the annuity
Amount of the ETP rolled-over to purchase the annuity
Pre-July 83 component
Untaxed element of the post-June 83 component
Taxed element of the post-June 83 component
Concessional Component
Undeducted contributions
Commencement of the eligible service period of the annuity
Whether the annuity was paid as a result of the permanent disability of the recipient
PART 2 - PAYMENTS MADE AFTER 30 JUNE 1992
ETPs
Whether the ETP is payable as a result of the death of a person
Whether the ETP is payable as a result of the commutation of, or the residual capital value of, a superannuation pension or annuity that had commenced to be paid
Whether the ETP is payable to the trustee of the estate of a deceased person
Superannuation pensions
Whether a reversion applies to the superannuation pension and if it does, the level of the reversion
Whether the superannuation pension is indexed and, if it is, the rate of indexation
Whether the superannuation pension is a rebatable superannuation pension
Whether the superannuation pension is payable as a result of the death of a person
Whether the superannuation pension meets the pension and annuity standards applicable to the pension
Whether the superannuation pension is payable as a reversion of another superannuation pension payable to a deceased person
Whether the superannuation pension is payable for the life of the primary beneficiary of the pension
Annuities
Whether the annuity is payable as a result of the death of a person
Whether the annuity meets the pension and annuity standards applicable to the annuity
Whether the annuity is payable as a reversion of another annuity payable to a deceased person
(subsection 15G(7) of the Act
regulation 4G)
Recipient information
Name of the person who received the benefit
Address of the person who received the benefit
Date of birth of the person who received the benefit
If the benefit is payable by an employer, whether the person is an associate of the employer
Fund information
Payer's name
Address of the payer
Tax file number of the payer
Whether the payer is a superannuation fund, life assurance company, registered organisation, or an employer of the recipient
ETP's
Date on which the ETP was made
Start date of the eligible service period to which the ETP relates
Amount of the ETP
Pre-July 83 component
Untaxed element of the post-June 83 component
Taxed element of the post-June 83 component
Concessional component
Undeducted contributions
Non-qualifying component
Where the benefit is a result of the commutation or residual capital value of an earlier benefit:
Superannuation pensions
The commencement day of the pension
Commencement of the eligible service period to which the pension relates
The annual value of the pension
Undeducted purchase price
Whether the pension is paid as a result of the permanent disability of the person
Whether the pension has a residual capital value
The amount of any residual capital value
Where the payer is a superannuation fund (the rules of which, at 15 August 1989, allowed the provision of a pension for the person the capital value of which exceeded 11.25 times any amount treated as salary under those rules) - whether the person was a member of that fund as at 15 August 1989
Annuities
Commencement day of the annuity
Amount of the ETP rolled-over to purchase the annuity
Pre-July 83 component
Untaxed element of the post-June 83 component
Taxed element of the post-June 83 component
Concessional component
Undeducted contributions
Commencement of the eligible service period of the annuity
Whether the annuity was paid as a result of the permanent disability of the recipient
(subsection 15J(1) of the Act
subregulation 4J(2))
Recipient information
Name of the person making the roll-over
Address of the person
Date of birth of the person
Roll-over information
Date on which the ETP was rolled-over
Date on which the ETP rolled-over was first paid
Pre-July 83 component amount rolled-over
Taxed element of the post-June 83 amount rolled-over
Untaxed element of the post-June 83 amount rolled-over
Concessional component rolled-over
Undeducted contributions rolled-over
(regulation 18H)
PART 1
Statement of the change in net assets of (insert name of Superannuation fund) available to pay benefits in (insert year of income of the fund)
Net market value of assets available to pay benefits at the beginning of the year of income of the fund:
plus:
Total gross income for the year, showing as separate components:
less:
Total outgoings, showing as separate components:
yielding:
Net market value of assets available to pay benefits at the end of the year of income
PART 2
Statement of net assets of (insert name of Superannuation fund) as at the end of (insert year of income of the fund)
Accumulated funds, represented by the net market value of the assets of the fund available to pay benefits at the end of the year of income of the fund, showing as separate components:
less:
Total liabilities, showing as separate components:
DIRECTION FOR COMPLETING STATEMENT
An amount inserted in this statement must be expressed to the nearest whole dollar.
(regulation 18R)
FORM 1 - INFORMATION RELATING TO A SUPERANNUATION FUND ESTABLISHED ON OR AFTER 1 JULY 1992
1. Tax File Number of the superannuation fund:
2. Name of the superannuation fund:
3. Details about a person who may be contacted about the superannuation fund:
4. The date on which the fund was established:
5. State whether the trustees of the superannuation fund have received, or expect to receive, a contribution:
Signature of the trustee or of a trustee authorised by the trustees to sign the form:
(Insert name of signatory below his or her signature)
Date:
Note:
If there is only 1 trustee, references in this form to "trustees" are to be read as references to the trustee.
FORM 2 - CERTIFICATE
1. The trustees of the superannuation fund certify that:
| Code | Description |
| A | Sole purpose test |
| B | Trustee conditions |
| C | Loans to members |
| D | Investments |
| E | Vesting of member-financed benefits |
| F | Vesting of employer-financed benefits |
| G | Preservation |
| H | Disclosure, reporting and fund records |
| I | Matters required in governing rules |
| J | Contributions |
| K | Payment of benefits |
| L | Application of forfeited benefits |
| M | Provision of information or documents |
| N | Minimum funding standard; and |
2. The trustees undertake to notify the Insurance and Superannuation Commissioner immediately in writing if they become aware that the fund has ceased, or will cease, to operate in accordance with any of those standards.
Signature of the trustee or of a trustee authorised by the trustees to sign the form:
(Insert name of a signatory below his or her signature)
Date:
Note:
If there is only 1 trustee, references in this form to "trustees" are to be read as references to the trustee.