Superannuation Industry (Supervision) Amendment Regulations 2000 (No. 2)

(151 of 2000)

28 June 2000

Made under Superannuation Industry (Supervision) Act 1993

1   Name of Regulations

These Regulations are the Superannuation Industry (Supervision) Amendment Regulations 2000 (No. 2).

2   Commencement

These Regulations commence on gazettal.

3   Amendment of Superannuation Industry (Supervision) Regulations 1994

Schedule 1 amends the Superannuation Industry (Supervision) Regulations 1994.

Schedule 1   Amendment

[1]   After Division 13.3

insert

Division 13.3A In-house assets of superannuation funds

13.22A Definitions for Division 13.3A

In this Division:

business real property has the meaning given in subsection 66 (5) of the Act.

lease arrangement means any agreement, arrangement or understanding in the nature of a lease (except a lease) under which one party is to use, or control the use of, property of another party, whether or not the agreement, arrangement or understanding is enforceable, or intended to be enforceable, by legal proceedings.

trustee , of a unit trust, means a trustee acting in the capacity of trustee.

13.22B Assets held at commencement of Division 13.3A (Act s 71)

(1) This regulation applies to an asset of a superannuation fund that:

(a) is an investment in a company or unit trust; and

(b) was acquired by the fund before the commencement of this Division; and

(c) is not affected by subregulation 13.22D (3).

(2) For subparagraph 71 (1) (j) (ii) of the Act, the asset is not an in-house asset of the superannuation fund if, when this Division commences:

(a) the superannuation fund has fewer than 5 members; and

(b) the company, or a trustee of the unit trust, is not a party to a lease with a related party of the superannuation fund, unless the lease relates to business real property; and

(c) the company, or a trustee of the unit trust, is not a party to a lease arrangement with a related party of the superannuation fund, unless the lease arrangement:

(i) is legally binding; and

(ii) relates to business real property; and

(d) the company, or a trustee of the unit trust, is not a party to a lease, or lease arrangement, with another party in relation to an asset that is the subject of another lease or lease arrangement between any party and a related party of the superannuation fund (unless the asset is business real property); and

(e) the company, or a trustee of the unit trust, does not have outstanding borrowings; and

(f) the assets of the company or unit trust do not include:

(i) an interest in another entity; or

(ii) a loan to another entity, unless the loan is a deposit with an authorised deposit-taking institution within the meaning of the Banking Act 1959; or

(iii) an asset over, or in relation to, which there is a charge; or

(iv) an asset that was acquired from a related party of the superannuation fund after 11 August 1999, unless the asset was business real property acquired at market value; or

(v) an asset that had been, at any time (unless it was business real property acquired by the company, or a trustee of the unit trust, at market value) in the period from the end of 11 August 1999 to the commencement of this Division, an asset of a related party of the superannuation fund.

(3) In subparagraphs (2) (f) (iv) and (v):

asset does not include:

(a) money; or

(b) in relation to a company, a share in the company.

13.22C Assets acquired after commencement of Division 13.3A (Act s 71)

(1) This regulation applies to an asset of a superannuation fund that:

(a) is an investment in a company or unit trust; and

(b) was acquired by the fund on or after the commencement of this Division; and

(c) is not affected by subregulation 13.22D (3).

(2) For subparagraph 71 (1) (j) (ii) of the Act, the asset is not an in-house asset of the superannuation fund if, when the asset is acquired:

(a) the superannuation fund has fewer than 5 members; and

(b) the company, or a trustee of the unit trust, is not a party to a lease with a related party of the superannuation fund, unless the lease relates to business real property; and

(c) the company, or a trustee of the unit trust, is not a party to a lease arrangement with a related party of the superannuation fund, unless the lease arrangement:

(i) is legally binding; and

(ii) relates to business real property; and

(d) the company, or a trustee of the unit trust, is not a party to a lease, or lease arrangement, with another party in relation to an asset that is the subject of another lease or lease arrangement between any party and a related party of the superannuation fund (unless the asset is business real property); and

(e) the company, or a trustee of the unit trust, does not have outstanding borrowings; and

(f) the assets of the company or unit trust do not include:

(i) an interest in another entity; or

(ii) a loan to another entity, unless the loan is a deposit with an authorised deposit-taking institution within the meaning of the Banking Act 1959; or

(iii) an asset over, or in relation to, which there is a charge; or

(iv) an asset that was acquired from a related party of the superannuation fund after 11 August 1999, unless the asset was business real property acquired at market value; or

(v) an asset that had been at any time (unless it was business real property acquired by the company, or a trustee of the unit trust, at market value) an asset of a related party of the superannuation fund since the later of:

(A) the end of 11 August 1999; and

(B) the day 3 years before the day on which the fund first acquired an interest in the company or unit trust.

(3) In subparagraphs (2) (f) (iv) and (v):

asset does not include:

(a) money; or

(b) in relation to a company, a share in the company.

13.22D When regulations 13.22B and 13.22C cease to apply to assets

(1) If regulation 13.22B or 13.22C applies to an asset, that regulation ceases to apply to the asset if any of the following events happens:

(a) the number of members of the superannuation fund increases to 5 or more;

(b) either of the following becomes an asset of the company or unit trust:

(i) an interest in another entity;

(ii) a loan to another entity, unless the loan is a deposit with an authorised deposit-taking institution within the meaning of the Banking Act 1959;

(c) the company, or a trustee of the unit trust:

(i) borrows money; or

(ii) gives, or allows to be given, a charge over, or in relation to, an asset of the company or unit trust;

(d) the company, or a trustee of the unit trust, conducts a business;

(e) the company, or a trustee of the unit trust, becomes a party to a lease with a related party of the superannuation fund, unless the lease relates to business real property;

(f) the company, or a trustee of the unit trust, becomes a party to a lease arrangement with a related party of the superannuation fund, unless the lease arrangement:

(i) is legally binding; and

(ii) relates to business real property;

(g) if the company, or a trustee of the unit trust, is a party to a lease, or legally binding lease arrangement, with a related party of the superannuation fund in relation to business real property, the property ceases to be business real property;

(h) if the company, or a trustee of the unit trust, is a party to a lease arrangement with a related party of the superannuation fund in relation to business real property, the lease arrangement ceases to be legally binding;

(i) the company, or a trustee of the unit trust, becomes a party to a lease, or lease arrangement, with another party in relation to an asset (unless it is business real property) that is the subject of another lease or lease arrangement between any party and a related party of the superannuation fund;

(j) a related party of the superannuation fund becomes a party to a lease, or lease arrangement, with another party in relation to an asset (other than business real property) that is the subject of another lease or lease arrangement between any party and:

(i) the company; or

(ii) a trustee of the unit trust;

(k) if the company, or a trustee of the unit trust, is a party to a lease, or lease arrangement, with another party in relation to business real property that is the subject of another lease or lease arrangement between any party and a related party of the superannuation fund, the property ceases to be business real property;

(l) the company, or a trustee of the unit trust, conducts a transaction otherwise than on an arm's length basis;

(m) the company, or a trustee of the unit trust, acquires an asset of a related party of the superannuation fund, unless the asset is business real property acquired at market value;

(n) the company, or a trustee of the unit trust, acquires from any party an asset (unless it is business real property acquired by the company, or trustee of the unit trust, at market value) that had been an asset of a related party of the superannuation fund at any time since the later of:

(i) the end of 11 August 1999; and

(ii) the day 3 years before the day on which the asset was acquired by the company or the trustee of the unit trust.

(2) In paragraphs (1) (m) and (n):

asset does not include:

(a) money; or

(b) in relation to a company, a share in the company.

(3) If regulation 13.22B or 13.22C ceases to apply to an asset of a superannuation fund, neither regulation applies to any other asset of the fund that is:

(a) acquired by the fund at any time; and

(b) an interest in the company or unit trust.