Superannuation Legislation Amendment Act (No. 2) 1999
(96 of 1999)
Assented to 16 July 1999
1 Short title
This Act may be cited as theSuperannuation Legislation Amendment Act (No. 2) 1999.
2 Commencement
This Act commences on the day on which it receives the Royal Assent.
3 Schedule(s)
Each Act, and each set of regulations, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1 Amendment of the Small Superannuation Accounts Act 1995
1 Section 14
Omit “$500” (wherever occurring), substitute “$200”.
2 Section 14
Omit:
Financial hardship
• Under section 64, the balance of the account may be withdrawn and paid to the individual if the individual is in severe financial hardship.
substitute:
Receipt of Commonwealth income support payments
• Under section 64, the balance of the account may be withdrawn and paid to the individual if the individual is in receipt of Commonwealth income support payments for a sufficient period.
3 Section 14
Omit:
Individual not an Australian resident
substitute:
Individual at least 55 years old and not an Australian resident
4 Section 14
Before “not an Australian resident for”, insert “at least 55 years old and is”.
5 Section 62
Omit “$500”, substitute “$200”.
6 Section 62
Omit:
• The balance of an individual’s account may be withdrawn if the individual is in severe financial hardship.
substitute:
• The balance of an individual’s account may be withdrawn if the individual is in receipt of Commonwealth income support payments for a sufficient period.
7 Section 62
Before “not an Australian resident”, insert “at least 55 years old and is”.
8 Paragraph 63(1)(d)
Omit “$500”, substitute “$200”.
Note: The heading to section 63 is altered by omitting “ $500 ” and substituting “ $200 ”.
9 Paragraph 64(1)(b)
Repeal the paragraph, substitute:
(b) the individual has been in receipt of one or more Commonwealth income support payments for:
(i) if the person is at least 55 years of age - a period of at least 39 weeks, or for 2 or more periods that total at least 39 weeks, since the person turned 55; or
(ii) in any case - for an unbroken period of at least 26 weeks (other than such a period that ended before the withdrawal request was given); and
(c) the individual gives the Commissioner of Taxation:
(i) written evidence of the individual’s receipt of relevant Commonwealth income support payments provided by the Commonwealth Department or agency that is responsible for administering the payment; or
(ii) such other evidence of the individual’s receipt of relevant Commonwealth income support payments as is prescribed.
Note: The heading to section 64 is altered by omitting “ severe financial hardship ” and substituting “ receipt of Commonwealth income support payments ”.
10 At the end of section 64
Add:
(6) For the purposes of subparagraph (1)(b)(ii), if an individual obtains evidence covered by subparagraph (1)(c)(i), the individual is, subject to evidence to the contrary, to be taken to have continued to have received the Commonwealth income support payment concerned for 21 days after the date of the written evidence.
(7) In this section:
Commonwealth income support payment means:
(a) any of the following payments (as defined in section 23 of the Social Security Act 1991):
(i) a social security benefit (other than an austudy payment or a youth allowance paid to a person who is undertaking full-time study);
(ii) a social security pension;
(iii) a service pension;
(iv) an income support supplement; or
(b) a drought relief payment under the Farm Household Support Act 1992 as in force immediately before the commencement of the Farm Household Support Amendment (Restart and Exceptional Circumstances) Act 1997; or
(c) an exceptional circumstances relief payment under the Farm Household Support Act 1992; or
(d) a payment of salary or wages made under the employment scheme of the Commonwealth that is known as the Community Development Employment Projects Scheme; or
(e) any other payment prescribed for the purposes of this definition.
11 After paragraph 67(1)(b)
Insert:
(ba) the individual is at least 55 years old when he or she gives the withdrawal request; and
12 Application of amendments
The amendments made by this Schedule apply in relation to requests given to the Commissioner of Taxation on or after the commencement of this Act.
Schedule 2 Non-arm's length trust distributions etc. to superannuation and similar funds
Income Tax Assessment Act 1936
1 Subsection 273(4)
After “dividend to which subsection (2) applies”, insert “or income derived by the entity in the capacity of beneficiary of a trust estate”.
2 At the end of section 273
Add:
(6) Income derived by the entity in the capacity of beneficiary of a trust estate (other than by virtue of holding a fixed entitlement to the income) is special income of the entity.
(7) Income derived by the entity in the capacity of beneficiary of a trust estate by virtue of holding a fixed entitlement to the income is special income of the entity if:
(a) the entity acquired the fixed entitlement under an arrangement (see subsection (8)), or the income was derived under an arrangement, some or all of the parties to which were not dealing with each other at arm’s length in relation to the arrangement; and
(b) the amount of the income is greater than might have been expected to have been derived by the entity if those parties had been dealing with each other at arm’s length in relation to the arrangement.
(8) In subsection (7), arrangement means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and 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.
3 Application
Subject to item 4, the amendments made by this Schedule apply to income derived after 2 pm by standard time in the Australian Capital Territory on 25 November 1997 (the commencement time ).
4 Transitional - income of unit holders
(1) Income derived during the period from the commencement time until the end of 2 July 1998 by the entity in the capacity of holder of a unit in a trust estate is special income of the entity for the purposes of Part IX of the Income Tax Assessment Act 1936 if, and only if:
(a) the entity acquired the unit under an arrangement, or the income was derived under an arrangement, some or all of the parties to which were not dealing with each other at arm’s length in relation to the arrangement; and
(b) the amount of the income is greater than might have been expected to have been derived by the entity if those parties had been dealing with each other at arm’s length in relation to the arrangement.
(2) In subitem (1), arrangement has the meaning given by subsection 273(8) as inserted in the Income Tax Assessment Act 1936 by item 2.
Schedule 3
Superannuation Guarantee (Administration) Regulations
1 At the end of subregulation 7(1)
Add:
; (c) an employee who has been appointed by a company operating in Australia to be the national managing executive or deputy national managing executive or a state manager and who is the holder of:
(i) a Subclass 456 (Business (Short Stay)) visa; or
(ii) a Subclass 956 (Electronic Travel Authority) (Business Entrant - Long Validity)) visa; or
(iii) a Subclass 977 (Electronic Travel Authority) (Business Entrant - Short Validity)) visa;
(d) an employee who is the holder of a visa referred to in paragraph (c) if:
(i) the employee:
(A) holds a position as a senior executive of a company operating in Australia; or
(B) is establishing a business activity in Australia on behalf of the employer; and
(ii) the employee’s position carries substantial executive responsibility; and
(iii) the employee’s qualifications for the position are appropriate; and
(iv) the employee’s position is a full-time position;
(e) an employee who is the holder of a Subclass 457 (Business (Long Stay)) visa if:
(i) the employee has been appointed by a company operating in Australia to be the national managing executive or deputy national managing executive or a state manager; and
(ii) the employee was nominated as mentioned in paragraph 457.223(2)(c), (4)(d) or (5)(d) of Schedule 2 to the Migration Regulations 1994 or identified as mentioned in subparagraph 457.223(3)(b)(i) of that Schedule;
(f) an employee who is the holder of a Subclass 457 (Business (Long Stay)) visa if:
(i) the employee holds a position as a senior executive of a company operating in Australia; and
(ii) the employee was nominated as mentioned in paragraph 457.223(2)(c), (4)(d) or (5)(d) of Schedule 2 to the Migration Regulations 1994 or identified as mentioned in subparagraph 457.223(3)(b)(i) of that Schedule; and
(iii) the employee’s position carries substantial executive responsibility; and
(iv) the employee’s qualifications for the position are appropriate; and
(v) the employee’s position is a full-time position;
(g) an employee who is the holder of a Subclass 457 (Business (Long Stay)) visa if:
(i) the employee is establishing a business activity in Australia on behalf of the employer; and
(ii) the employee’s position carries substantial executive responsibility; and
(iii) the employee’s qualifications for the position are appropriate; and
(iv) the employee’s position is a full-time position.
2 Transitional - amendments apply from 1 August 1996
Paragraphs 7(1)(c), (d), (e), (f) and (g) of the Superannuation Guarantee (Administration) Regulations apply to an employee who, on or after 1 August 1996, became the holder of:
(a) a Subclass 456 (Business (Short Stay)) visa; or
(b) a Subclass 457 (Business (Long Stay)) visa; or
(c) a Subclass 956 (Electronic Travel Authority) (Business Entrant - Long Validity)) visa; or
(d) a Subclass 977 (Electronic Travel Authority) (Business Entrant - Short Validity)) visa.
3 Transitional - regulations may be amended
This Schedule does not prevent the amendment or repeal of the Superannuation Guarantee (Administration) Regulations by regulations made under the Superannuation Guarantee (Administration) Act 1992.