Superannuation Industry (Supervision) Act 1993

PART 4 - ACCOUNTS, AUDIT AND REPORTING OBLIGATIONS FOR SUPERANNUATION ENTITIES

History

Pt 4 substituted by No 154 of 2007, s 3 and Sch 3 item 8, effective 24 September 2007. Pt 4 formerly read:

PART 4 - TRUSTEE OF SUPERANNUATION ENTITY TO LODGE ANNUAL RETURNS WITH THE REGULATOR

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History

Heading to Pt 4 substituted by No 121 of 1999, s 3 and Sch 1 item 30, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Part 24B . The heading formerly read:

PART 4 - TRUSTEE OF SUPERANNUATION ENTITY TO LODGE ANNUAL RETURNS WITH APRA

Heading to Pt 4 substituted by No 54 of 1998.

SECTION 35 SECTION 35 OBJECT OF PART
35
The object of this Part is to require certain reports and returns relating to superannuation entities to be given to the Regulator.
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S 35 substituted by No 53 of 2004, s 3 and Sch 2 item 11, effective 1 July 2004. S 35 formerly read:

OBJECT OF PART
35
The object of this Part is to require the trustee of a superannuation entity to lodge an annual return with the Regulator.

S 35 amended by No 121 of 1999, s 3 and Sch 1 item 59, by substituting " the Regulator " for " APRA " , effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

S 35 amended by No 54 of 1998.

SECTION 36 TRUSTEE TO GIVE COPY OF AUDIT REPORT TO APRA
36(1) Lodgment.
Each trustee of a superannuation entity must, within the prescribed period after the year of income, ensure that APRA is given a copy of the report given to a trustee of the entity by an approved auditor under Part 13 in relation to the entity, and any RSE licensee of the entity, in respect of that year of income, certified to be a true copy of the report by:

(a) if the trustee is a body corporate - a responsible officer of the body corporate; or

(b) if the trustee is a member of a group of individual trustees - at least one of those trustees; or

(c) in any other case - the trustee.
Note:

The Financial Sector (Collection of Data) Act 2001 makes provision for annual returns and other financial documents to be given by trustees to APRA.

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History

S 36(1) (not including the note) substituted by No 53 of 2004, s 3 and Sch 2 item 12, effective 1 July 2004. S 36(1) formerly read:

36(1)
Lodgment. The trustee of a superannuation entity must, within the prescribed period after each year of income, give to APRA:

(a) (Repealed by No 121 of 2001)

(b) (Repealed by No 121 of 2001)

(c) a copy of the report given to the trustee by an approved auditor under Part 13 in relation to the entity in respect of that year of income, certified to be a true copy of the report by:

(i) if the trustee is a body corporate - a responsible officer of the body corporate; or

(ii) if the trustee is a group of 2 or more individuals - at least one of those individuals; or

(iii) in any other case - the trustee.

S 36(1) amended by No 121 of 2001, s 3 and Sch 2 items 97 and 98, by repealing paras (a) and (b) and inserting note, effective 1 July 2002.

Act No 121 of 2001, s 3 and Sch 2 item 147, contains the following application provision:

Application
147
The amendments apply only on and after the day on which the reporting standards determined under section 13 of the Financial Sector (Collection of Data) Act 2001 begin to apply under section 15 of that Act to financial sector entities (within the meaning of that Act) that are trustees of superannuation entities (within the meaning of the Superannuation Industry (Supervision) Act 1993 ).

S 36(1)(a) and (b) formerly read:

(a) a return, in the approved form, containing such information as is required by that form in relation to the entity in respect of that year of income; and
Note:

The approved form of return may require the trustee to set out the tax file number of the entity. See subsection 299U(2) .

(b) a certificate, in the approved form, by the trustee in relation to the entity in respect of that year of income; and

S 36(1) amended by No 54 of 1998, No 76 of 1996 and No 144 of 1995.

36(2)
A trustee is guilty of an offence if the trustee contravenes subsection (1).
Maximum penalty: 50 penalty units.

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History

S 36(2) amended by No 53 of 2004, s 3 and Sch 2 item 13, by substituting " A trustee " for " The trustee " , effective 1 July 2004.

S 36(2) and (2A) substituted for s 36(2) by No 160 of 2000, s 3 and Sch 3 item 46, effective 18 January 2001. S 36(2) formerly read:

36(2)
Offence. A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.

36(2A)
A trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.
Maximum penalty: 25 penalty units.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

For strict liability , see section 6.1 of the Criminal Code .

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History

S 36(2A) amended by No 53 of 2004, s 3 and Sch 2 item 13, by substituting " A trustee " for " The trustee " , effective 1 July 2004.

S 36(2) and (2A) substituted for s 36(2) by No 160 of 2000, s 3 and Sch 3 item 46, effective 18 January 2001.

36(3)
(Repealed by No 121 of 2001)
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History

S 36(3) repealed by No 121 of 2001, s 3 and Sch 2 item 99, effective 1 July 2002. For application provision see history note under s 36(1). S 36(3) formerly read:

36(3)
Data processing devices. An approval given by APRA of a form of return for the purposes of paragraph (1)(a) may require or permit the return to be given on a specified kind of data processing device in accordance with specified software requirements.
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S 36(3) amended by No 54 of 1998.

36(4) Endorsement of report on return.
If the return given under the Financial Sector (Collection of Data) Act 2001 is not given on a data processing device, or by way of electronic transmission, the report referred to in subsection (1) may be endorsed on the return.
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History

S 36(4) substituted by No 121 of 2001, s 3 and Sch 2 item 99, effective 1 July 2002. For application provision see history note under s 36(1). S 36(4) formerly read:

36(4)
Endorsement of certificate or report. If the return is not given on a data processing device, the certificate referred to in paragraph (1)(b) or the report referred to in paragraph (1)(c) may be endorsed on the return.
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S 36(4) substituted by No 144 of 1995.

36(5) Self managed superannuation funds.
A superannuation entity is not required to lodge a return under the Financial Sector (Collection of Data) Act 2001 in respect of a year of income if the superannuation entity was, at all times during the year of income, a self managed superannuation fund.
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History

S 36(5) amended by No 121 of 2001, s 3 and Sch 2 item 100, by substituting " under the Financial Sector (Collection of Data) Act 2001 " for " under this section " , effective 1 July 2002. For application provision see history note under s 36(1).

S 36(5) inserted by No 121 of 1999, s 3 and Sch 1 item 31, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

SECTION 36A TRUSTEE OF SELF MANAGED SUPERANNUATION FUND TO LODGE ANNUAL RETURNS
36A(1) Lodgment.
Each trustee of a superannuation entity that was a self managed superannuation fund at any time during a year of income must, within the reporting period, or within such longer period as the Commissioner of Taxation allows, ensure that the Commissioner of Taxation is given a return under this section.
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S 36A(1) amended by No 53 of 2004, s 3 and Sch 2 items 14 and 15, by substituting " Each trustee " for " The trustee " and substituting " ensure that the Commissioner of Taxation is given " for " give to the Commissioner of Taxation " , effective 1 July 2004.

36A(2) Period for lodgment.
The reporting period is the period that begins at the end of the year of income and whose length is:

(a) prescribed by the regulations for the purposes of this paragraph; or

(b) if the length of the period is not prescribed - specified for the purposes of this paragraph by the Commissioner of Taxation by notice in the Gazette .

36A(3) Form of return.
The return must:

(a) be in the approved form; and

(b) contain such information as is required by the form in relation to the fund in respect of that year of income or in relation to another year of income, or both.
Note:

The approved form of return may require a trustee to set out the tax file number of the entity. See subsection 299U(2) .

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S 36A(3) amended by No 53 of 2004, s 3 and Sch 2 item 16, by substituting " a trustee " for " the trustee " in the note, effective 1 July 2004.

36A(4)
(Repealed by No 24 of 2000)
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History

S 36A(4) repealed by No 24 of 2000, s 3 and Sch 10 item 8, effective 12 May 2000. S 36A(4) formerly read:

36A(4)
Approvals. An approval given by the Commissioner of Taxation of a form of return for the purposes of this section may require or permit the return:

(a) to be attached to, or physically to form part of, another document; and

(b) to be given on a specified kind of data processing device or by specified electronic transmission, in accordance with specified software or other requirements.

36A(5)
(Repealed by No 24 of 2000)
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S 36A(5) repealed by No 24 of 2000, s 3 and Sch 10 item 8, effective 12 May 2000. S 36A(5) formerly read:

36A(5)
Signature when not lodged electronically. If the return is given to the Commissioner of Taxation other than by data processing device or by electronic transmission, the return must be signed by:

(a) if the trustee is a body corporate - a director of the body corporate; or

(b) if the trustee is a group of 2 or more individuals - at least one of those individuals.

36A(6)
(Repealed by No 24 of 2000)
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History

S 36A(6) repealed by No 24 of 2000, s 3 and Sch 10 item 8, effective 12 May 2000. S 36A(6) formerly read:

36A(6)
Signature when lodged electronically. If the return is given to the Commissioner of Taxation on a data processing device or by way of electronic transmission:

(a) the return must contain the electronic signature of a person specified in the approved form; and

(b) a hard copy of the return must be made and signed by:

(i) if the trustee is a body corporate - a director of the body corporate; or

(ii) if the trustee is a group of 2 or more individuals - at least one of those individuals.

The hard copy need not be given to the Commissioner of Taxation, but must be kept by a person referred to in paragraph (b) for a period of 10 years beginning on the date on which it was signed.

36A(7)
A person is guilty of an offence if the person contravenes this section.
Maximum penalty: 50 penalty units.

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History

S 36A(7) and (7A) substituted for s 36A(7) by No 160 of 2000, s 3 and Sch 3 item 47, effective 18 January 2001. S 36A formerly read:

36A(7)
A person who intentionally or recklessly contravenes this section commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

36A(7A)
A person is guilty of an offence if the person contravenes this section. This is an offence of strict liability.
Maximum penalty: 25 penalty units.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

For strict liability , see section 6.1 of the Criminal Code .

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History

S 36A(7) and (7A) substituted for s 36(7) by No 160 of 2000, s 3 and Sch 3 item 47, effective 18 January 2001.

36A(8)
A notice under paragraph (2)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
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S 36A inserted by No 121 of 1999, s 3 and Sch 1 item 32, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

Division 3 - Obligations for self managed superannuation funds

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SECTION 35C AUDIT OF ACCOUNTS AND STATEMENTS

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35C(1)

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For each year of income, each trustee of a superannuation entity that is a self managed superannuation fund must ensure that an approved SMSF auditor is appointed to give the trustee or trustees a report, in the approved form, of the operations of the entity for that year. The appointment must be made within whichever of the periods set out in the regulations applies to the entity.

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35C(1A)
(Repealed by No 61 of 2013)

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35C(2) [ Auditor ' s request for documents]

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If an auditor requests, in writing, a trustee of a superannuation entity that is a self managed superannuation fund to give the auditor a document, each trustee of the entity must ensure that the document is given to the auditor within 14 days of the request being made. Only documents that are relevant to the preparation of the report may be requested.

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35C(3) [ Offence]

A trustee commits an offence if the trustee contravenes subsection (1) or (2).

Penalty: Imprisonment for 2 years.

35C(4) [ Strict liability]

A trustee commits an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.

Penalty: 50 penalty units.

Note:

For strict liability , see section 6.1 of the Criminal Code .

35C(5)

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Without limiting subsection (1), an approved form:

(a) must either:

(i) relate solely to the audit of the accounts and statements referred to in subsection 35B(1) and prepared in respect of a year of income; or

(ii) relate only to the audit of those accounts and statements and of any other accounts and statements, prepared in respect of a year of income, that are identified in the form; and

(b) must include a statement by the auditor as to the extent of the auditor ' s compliance with the auditor independence requirements referred to in paragraph 128F(d) ; and

(c) must include a statement by the auditor as to whether, in the auditor ' s opinion, each trustee of the entity has, during the year of income, complied with the provisions of this Act and the regulations that are identified in the form.

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History

S 35C(5) substituted by No 61 of 2013, s 3 and Sch 1 item 58, effective 1 July 2013. S 35C(5) formerly read:

35C(5)
Without limiting subsection (1), an approved form:

(a) must, if it is approved for a registrable superannuation entity, either:

(i) relate solely to the audit of financial statements given to APRA under the Financial Sector (Collection of Data) Act 2001 and prepared in respect of a year of income; or

(ii) relate only to the audit of those statements and of any other accounts and statements, prepared in respect of a year of income, that are identified in the form; and

(b) must, if it is approved for a superannuation entity that is a self managed superannuation fund - either:

(i) relate solely to the audit of the accounts and statements referred to in subsection 35B(1) and prepared in respect of a year of income; or

(ii) relate only to the audit of those accounts and statements and of any other accounts and statements, prepared in respect of a year of income, that are identified in the form; and

(ba) must, if it is approved for a superannuation entity that is a self managed superannuation fund, include a statement by the auditor as to the extent of the auditor ' s compliance with the auditor independence requirements referred to in paragraph 128F(d) ; and

(c) must include a statement by the auditor as to whether, in the auditor ' s opinion, each trustee of the entity and the RSE licensee (if any) of the entity has, during the year of income, complied with the provisions of:

(i) this Act and the regulations; and

(ii) if the entity is a registrable superannuation entity - the Financial Sector (Collection of Data) Act 2001 , the Corporations Act 2001 and the regulations under that Act;
that are identified in the form.

(d) (Repealed by No 117 of 2012)

S 35C(5) amended by No 158 of 2012, s 3 and Sch 2 item 18, by inserting para (ba), effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.

S 35C(5) amended by No 117 of 2012, s 3 and Sch 2 items 35 and 36, by substituting " form. " for " form; and " in para (c) and repealing para (d), effective 9 September 2012. Para (d) formerly read:

(d) must, if it is approved for a registrable superannuation entity that is registered under Part 2B , include a statement by the auditor as to whether, in the opinion of the auditor, the RSE licensee of the entity:

(i) has complied with each risk management plan for the entity that applied during that year; and

(ii) has adequate systems to ensure future compliance with any risk management plan for the entity; and

(iii) has complied with each risk management strategy that applied to the RSE licensee during that year in relation to risks arising from any activities, and proposed activities, as RSE licensee of the entity, and all other activities, or proposed activities, relevant to those activities; and

(iv) has adequate systems to ensure future compliance with the risk management strategy for the RSE licensee in relation to future risks arising from any proposed future activities as RSE licensee of the entity, and all other proposed future activities relevant to those activities.

35C(6) [ Provision of report to trustees]

The auditor must give the report to each trustee of the entity within the prescribed period after the end of the year of income.

35C(7)
(Repealed by No 61 of 2013)

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35C(8)
The auditor commits an offence if the auditor contravenes subsection (6). This is an offence of strict liability.

Penalty: 50 penalty units.

Note:

For strict liability , see section 6.1 of the Criminal Code .

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